Crime Victim Rights and the Courts-DC Public Safety-NOVA

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– Audio begins –

Len Sipes: From our microphones in downtown Washington, DC, this is DC Public Safety. I’m your host, Leonard Sipes. Back on our microphones, Will Marling from the National Organization for Victim Assistance. NOVA has been around for eons in terms of being what I consider to be the premiere organization representing victim’s rights all through the United States. I can remember a long time ago when I worked for the Department of Justice’s clearing house, they gave me the assignment of being the Senior Specialist for Crime Prevention and Victim Assistance, and that’s when I found out about NOVA, interacted with NOVA, and I’ve had a deep and just a complete respect for NOVA ever since that happened, and that’s close to 30 years ago. With Will Marling today at NOVA, we have what I consider to be a supreme honor, Richard Barajas. He is the Chief Justice, Senior Status, Texas Court of Appeals in El Paso, Texas, talking about a judicial approach to victim assistance. Before we get into our program, the usual commercial – ladies and gentlemen, we are up to 230,000 requests a month for DC Public Safety, that’s media.csosa.gov. If you want to get in touch with me to give suggestions, criticisms, suggestions for new programs, please feel free to do so. My e-mail address is leonard.sipes@csosa.gov. You can follow me via Twitter at twitter.com/lensipes, and to Will Marling and to Richard Barajas, welcome to DC Public Safety.

Will Marling: Thanks, Leonard.

Richard Barajas: My pleasure.

Len Sipes: You know, it is really interesting, this whole concept of a judicial approach to victim’s assistance, because for years, we’ve sort of seen the judiciary as being, well, not exactly the best of friends of victim assistance, but then again, the entire criminal justice system could be seen as not being the best friend of victim assistance and victim’s issues. I think we’ve all, whether it’s law enforcement, whether it’s corrections, whether it’s parole and probation, or whether it’s the judiciary, have improved our act in recent years, and now we have Richard Barajas, again, Chief Justice, Senior Status, Texas Court of Appeals. He’s also at the moment running a college program at Cathedral High School in El Paso, Texas. Will or Richard, tell me a little bit about this concept of a judicial approach to victim assistance.

Will Marling: Judge, you fill us in.

Richard Barajas: I think the approach, Len, is not so much a new approach; it’s perhaps a resurrection of sorts. It might be a misstatement to talk in terms of the judiciary as not being friends. I think the problem historically has been that the judiciary has seen itself as being detached from many of these issues in an overbearing effort to appear to be fair and impartial, but the truth is, the way our Constitution is drafted, the way the state laws are drafted, we do pay tremendous deference to the criminal defendant in our courts system, but at the expense of the crime victim, whereas we do have Constitutional protections in many of the states, of course federal laws, that would render rights for crime victims, but then they’re often overlooked out of fear for appearing to have an imbalanced criminal justice system in favor of a crime victim. So it’s really all about balancing the rights of the criminal defendant and the intended victim.

Len Sipes: And I think you’re 100 percent correct, and you would be considering your status, but it’s just that – we have a criminal justice system that has,you know, when I came up through the criminal justice system, I was schooled in balance. I was schooled in rights. I was schooled in Miranda. I was schooled in all the processes that you have to go through to be sure that the person who you arrest is fairly treated and the case being presented properly in court, and the victim was seen as sort of a sidebar issue. The victim was seen as basically a tool to help you prosecute this individual, bring this individual into court, so the rights were constantly emphasized for the offender. We didn’t receive a lot of emphasis on the rights of the victim, and I think that that’s changed dramatically over the last 30 years, but I think there is still room for a lot of improvement. Will?

Will Marling: Well, definitely. We get completes on our toll-free number from victims, and we have an 800 nationwide number, 800-TRY-NOVA, and one of the complaints is, is that very issue that victims feel like they are really neglected in the process. Part of that is within our justice system because the emphasis is on the accused versus the state and so on, but it’s amazing that even in law enforcement, it’s some of the simple things that can tell people, that can communicate to victims, that they matter, that we’ve sensitive to their issues, listening to them, and these kinds of things. Of course, I think Judge Barajas, his heart, his understanding of recognizing the needs of victims is significant, and in some ways educating that particular and significant important component of our justice system, to be significant to meaningful contributions to these people at many times the worst point in their lives.

Len Sipes: So what does the judiciary bring to the table, your honor or Richard? Again, we in the larger criminal justice system have lots of room for improvement, and I must say, it’s interesting this whole sense of the detachment of the judiciary. I’m doing more and more programs involving the judiciary throughout the country, more and more programs involving court systems, where the courts are taking a very, very, very active role in terms of bringing the entire criminal justice system together to do a better product, whether it’s reduce crime, whether it’s victim assistance, whether it’s a wide array of different things, I see an evolving judiciary. I see a judiciary that’s not so much detached as it was 10 years ago, 20 years ago. I see the judiciary more and more as almost being a full partner with the other criminal justice agencies as long as we understand that you have a specific job to do, and ultimately you must be fair to all parties. That’s exactly what the law requires.

Richard Barajas: I think the interesting thing, Len, I go back to being on the bench, to 1991, and recently retired to take the position I have now, but before that, I was an elected district attorney in the state of Texas, so I will tell you my perspective is one from an elected prosecutor who through no coincidence ran on purely a crime victim’s platform when I was first elected back in 1987. But I think what it is, is the evolution of the judiciary, and a lot has to do with what the Supreme Court has done, for example, with how judges can voice opinions and things of that nature, so that they’re not detached anymore, but rather can be more than simple robot [PH] drones that call balls and strikes. Let me give you a simple example because Will has heard me say this many, many times when I’ve spoken – imagine for a second a world where you bring a criminal defendant in who is accused of a crime, and the judge on the bench admonishes that defendant of every right he has under the laws of this country and in the state, as he should, and then he turns to the victim of crime and admonishes the victim of crime of every single right that victim has under federal law and the laws of every state. The balance that that would have, and the impact that would have on society will be monumental. We are simply afraid to take that step, so that’s why I’ve often lectured on the proper balance of these issues, is that years ago I wrote a law review article, and the research we did was really telling that originally the founding of our country, crime victims had rights. They had a place at the table, but it eroded over a period of time, and one would argue, the purists would argue that crime victims still have that right under the 9th Amendment, but it’s kind of taken a backseat to more expressed and delegated rights that criminal defendants have. If you could just openly express, in court, in front of the defendant, in front of the public, that this is a balance system that alone will dramatically change the perception of the judicial system in this country forever.

Len Sipes: Why doesn’t that happen, your honor?

Richard Barajas: They’re afraid. I think they’re often afraid of making people believe that they’re overly balanced in favor of the victim, whereas I think with more education, and I think education, Will and I have had this discussion, I think judges as a rule are afraid of crime victims in the courtroom, almost without exception. I was. The big reason is that you can have a perfect case all the way up the criminal justice,perfect not in the sense of guilt or innocence, but in the sense of the process that the system was meant to pursue, and then one judge can screw it all up by saying the wrong thing because he was sensitive or not knowledgeable, but by the same token, they’re afraid to really turn to a crime victim and tell them they have rights. Police officers do it all the time, well, crime victim advocates across this country do it all the time, but how often have you ever heard a judge actually say that in open court? I can see a day when the judge will tell us, and I mention the crime victim, you’re there to be notified and tell this crime victim, and if you are not notified, I want to know about it. What a change.

Len Sipes: Oh, it would be a tremendous change, and I can understand the fear, I can understand the apprehension on the part of the judiciary. All of us who have been schooled in offender rights, and we’ve been schooled extensively in offender rights, regardless of whether it’s my time as a police officer going through six months of the police academy, regardless as to my criminological training, regardless as to my law training, this whole I guess atmosphere, this whole training, volumes and volumes have been written on the evolution of the rights of the offender, the taking of the Bill of Rights and applying it to the states. That’s a fascinating history, but when you’re schooled in that for decades, suddenly the victim comes along and you go, what do I do with this person? That person doesn’t fit nicely in terms of all of my training. The nationalization of the Bill of Rights, the application of the Bill of Rights from the federal government to the states, and that slow, gradual evolution and how it was applauded along the way as being what a fair and just government does, nowhere along the line did it say the word ‘victim.’

Richard Barajas: I think, Will, you would agree, without any question, nobody can deny we’ve made great strides in the area, but I’ll tell you, Len, as a former district attorney in speaking to so many of my then peers and colleagues, a crime victim was seen as a necessary evil within the criminal justice system because you had to deal with them and you had no control over emotions, so you may have had a good case and then it all just kind of unravels in court with a victim that you can’t control the emotions. So for generations, prosecutors simply did not know how to deal with crime victims, and if the prosecutor can’t deal with them, that scares the heck out of the judge. We’re talking maybe a retrial and then mistrial.

Len Sipes: Well, that’s just it – isn’t that the issue? In this day in age, everybody in the criminal justice system has a tremendous amount on their plate, whether it’s law enforcement, whether it’s corrections, it really doesn’t matter. Everybody has just a tremendous amount of work on their plate, and for a judge to have a decision overturned because he or she inappropriately, as far as the appeals court is concerned, did not give enough consideration to the defendant’s rights and gave a bit more to the victim’s rights, and that possibly could be seen as prejudicial, isn’t that the fear that judges are going to find decisions overturned and a tremendous amount of time and effort is going to be wasted in the process, or am I over blowing the situation?

Richard Barajas: I don’t think you’re over blowing it. I think it’s multi-faceted. Of course in jurisdictions where you elect judges, nobody wants to be reversed anywhere, but within jurisdictions where you elect them, this kind of insensitivity is a disaster for defeat in an election. In areas where they are not elected, whether it’s a recall election or whatever the case may be, once again the emotion behind this thing is tremendous. I’ve reversed cases based on,well, you have a judge where you don’t really know,[INDISCERNIBLE] on the rulings, unfortunate until they say something they shouldn’t say. We’ve had cases where the judge will all of a sudden blame the crime victim. That’s a question of sensitivity. We have a sexual assault, and you still see that today, and that’s a question of judicial education. I think, quite frankly, that this country has yet to really understand how to educate judges, perhaps by judges, so you have that sense of comfort with who’s actually doing the lecture without the emotion that sometimes they fear, to let them know it is all right to say things and it is not all right to say other things. I’ve never been to a judicial conference that addresses that issue, Will, in all the years I’ve been on the bench.

Will Marling: Right.

Len Sipes: I think the entire system has that fear. The bottom line is this – I think all three of us would agree, that what we have in most of the states and at the federal level, is we have constitutional protections now for victim rights, and that is probably just the beginning step, but it is,having those rights and implementing those rights are two different things. I’ve had other shows on victim assistance and victim’s issues where I’ve interviewed people who are on the street level, the law enforcement level, the parole and probation level, the corrections level, who I’ve looked at them, they’ve been in my studio and I’ve looked at them in the eye, and I’ve said, okay, now that we’ve established the fact that these Constitutional rights are in place, how many times have you had to go back to your administration to remind them that those Constitutional rights are in place? So having rights in place and enforcing it, and having the system really deal with it, I think are two different things, and I think that’s the lack of comfort. We all want to move in the best interest of the victims. We all want to move in the best interest of public safety. We all want to move in the best interest of the offenders that we’re dealing with, and sometimes we’re just scared that the victim is going to somehow, someway, mess things up. I think that’s the heart and soul of it; that’s what we’ve got to get over.

Will Marling: Sure. And if I could speak to something there on behalf of the victims, the issue of educating the victims in the process gives them an opportunity to understand how they can contribute to that potential conviction. They don’t want it overturned anymore than the judge does. That’s what people don’t understand. The problem is, in terms of educating them, if we can work with the victim to educate them as to how this process works, then they will serve us by in large. Will they be impacted by emotion? Yes, but many victims have to learn under incredible pressure how to demonstrate a real resolve against demonstrating any emotion. Imagine if we could work with them to communicate, here’s the process, which is what this is supposed to be doing. That’s what advocacy does. It informs them about these things, so that in that process, they actually will contribute in meaningful ways to the appropriate just outcome. The fact is, that whoever is accused, the victim is still there. It’s the same victim. If you acquit this guy and then arrest somebody else and bring them into the same courtroom, it’s still the same victims, and sometimes that’s what’s completely missing here. The accused should have rights, of course, for a balanced process, but there is always a victim and they still have to deal with the realities of their losses.

Len Sipes: Again, the Executive Director of the National Organization for Victim Assistance (NOVA), who’s been around for decades, has a superb reputation in the world of victim assistance and throughout the criminal justice system. Richard Barajas, the Chief Justice, Senior Status for the Texas Court of Appeals in El Paso, Texas, has had to leave and go to another appointment, so we’re going to continue the conversation with Will. Will, to summarize the first half, basically what we were talking about is the idea of the judiciary getting more actively involved with this issue of victim’s rights, even to the point of the judge from the bench, and we all know how the judge from the bench reads the rights of the defendant and makes sure that the defendant understands his or her rights upon prosecution. He was even suggesting that the judge reads the rights to the victim, so the victim or the victims understand exactly where they stand within the criminal justice process. I think that that’s an extraordinarily powerful incentive, so I really do thank Richard Barajas for stopping by today and talking about that. But let’s continue with the conversation, because if you work with victims beforehand, I guess principally on the law enforcement end of things, and if you build your case well, and if you really respect victim’s rights because in most states there is a constitutional amendment respecting or delineating or spelling out victim’s rights, if you do everything before you get the person to court, the less the court has to worry about victim’s rights, correct?

Will Marling: Yeah, that’s exactly right. Thirty-three out of fifty states have victim’s rights in their constitution, and of course the idea of victim’s rights, Constitutional rights is an important one because it doesn’t really affirm what we already hold to be true, and of course, we articulate those rights because then we want to make sure that people know that, they’re articulated that way, and then enforcement of those rights, protecting those rights. Well, if we were to articulate and protect the rights of the victims, then a lot of things happen then. The respect for that person who’s been through a horribly traumatic situation and suffered probably great losses if it’s a survivor of homicide for instance, and then helping that person address the issues that they’re facing. The unique thing about a crime victim, of course, is the added dimension of trauma, and that’s sometimes what is so assumed, that the person’s been traumatized, but it’s how you work with that person. I will admit that say, for instance in law enforcement, when you’re dealing with somebody who’s been traumatized and maybe you’re not trained in that, you learn to deal with it, but you might not really understand what’s going on there inside that person. So the trauma,if you know how to address that person, if you know how to speak to them, if you know how to support them meaningfully, they are going to be most likely an asset to the case that you’re trying to build in the violation of law and the prosecution of this case. That’s what we would promote.

Len Sipes: One of things that we discussed in the first half of the program was the fact that in my training, at least in my 40 years in the criminal justice system, it was 99.9 percent the training was focused on the rights of the victim, and the message was consistently there – if you focus on the rights – I’m sorry, focus on the rights of the defendant, and if you screw up those rights, if you violate those rights, if you do not appropriately read him his Miranda rights in terms of a custodial interrogation, now, it’s funny because you didn’t have to read the individual’s rights unless you were going to interrogate him, but everybody sees on television that as soon as the arrest is made he’s Mirandized, but our folks were saying, oh, no, go one step further. Advise him of his rights right up front, even though you don’t have to and even though it’s not required by the court because we don’t intend on asking him anything because we have a witness who basically saw him do what he did and that’s all we need. It goes that far. It’s like protect the rights of the defendant and the victim? Well, the victim is there to help me prosecute – what more do I need to know about the victim? If we did a better job, if we made sure that the victim was properly prepared, if we respected the various rights mandated in most states of the victim, the right to,just basically the right to be informed and the right to proper treatment on the part of the criminal justice system, that would make for a better case. It would be easier for the state to prosecute that case, but we’ve got to do that upfront.

Will Marling: Yes, absolutely, and the education of victims in terms of this process, the judicial process, the criminal process, that comes into victim’s rights. A lot of the victim’s rights statements, whether they’re legislative or some kind of statutory decree or in a Constitutional setting, those rights are an articulation of information for those victims. They have the right to know about certain things, to be fully informed of the process. Well, when people are made aware, typically that helps them understand how to contribute. You’re not going to find a victim who wants to cause a problem in a court setting. They don’t want to jeopardize those proceedings, but they don’t actually know that what they might do could jeopardize that, for instance, an emotional outburst in front of a jury. So what happens is, if they’re historically even allowed in the courtroom, and may times a defense attorney would simply put them on the witness list even though they were never intended to be called, they couldn’t participate in that. We have lots of stories of people listening to their trial of their deceased loved one, murdered, as they stand outside the courtroom with their ear pressed against the door. They’re not even allowed in. Of course, they’re the one most impacted by it. If they are allowed in, but they don’t realize that that outburst could cause a problem in terms of the proceedings, they don’t know. Well, if they’re informed of these kinds of things, how this process works, why it’s important for you to maintain your decorum, why it’s important for you to recognize if this is too traumatic for you, then that helps everybody because we want to have fair and just proceedings, but in every case, there is going to be a victim. Even if you change the setting for the accused, the accused is acquitted and somebody else is arrested, it’s still the same victim. They still have to go through that same process, so that’s why if this concept of victim’s rights were to be more firmly implanted into our processes, as we are trying to do with the Constitutional Amendments and so on, that in and of itself would put it on our radar. We would recognize the victims in their role, and of course respect that. Historically, it’s the state versus the perpetrator, and that, of course, is one of the reasons why we have such a challenge when dealing with the perpetrator’s rights.

Len Sipes: And I always go back to the same concept – an individual who is about to be thrust into the criminal justice process, that is just beyond my comprehension. Thank God I have never been the victim of a crime. I have certainly known lots of people who have, and I’ve certainly tried to help walk them through the process, but to them it is just,the criminal justice system is this wall, and this wall is 150 feet high, nobody’s smiling, nobody’s holding their hand, nobody is giving them all the information they need. It’s just a wall, and they see that wall, and that’s got to effect that person’s decision as to whether or not to help law enforcement or to help prosecute the case because all they see is this gigantic wall, and that’s why we have victim service representatives or victim assistance representatives, where we can sit down with that individual, explain the entire process, and make sure that they’re very comfortable with what’s about to happen. But it can’t be just the victim representative on the part of law enforcement or the prosecutor’s office or parole and probation or corrections. It has to be everybody that’s going to come in contact with that victim. Everybody has got to understand that they could blow the whole thing simply by being insensitive, and 99 percent I think, and you correct me if I’m wrong, of what victims want is simply information about how the process unfolds and what’s going to happen now.

Will Marling: And you’re basically right. At maybe a higher level, they want to pursue a notion of justice, but at a personal level, there is this emotional impact of dealing with a system that is really not compassionate. It is simply a system. So does it have compassion of people in the system? Well, we hope so, and that’s what,some people seem to think that if you demonstrate compassion to a victim, you’re in some way imbalanced or inequitable in terms of your ability to render justice, but again, every victim in this situation is a victim, so you can just recognize that as a fact. Now we all struggle again with the emotional impact some people demonstrate, but if at every point the folks in the justice system would make a meaningful contribution to the forward movement of that victim, I personally believe, and I think we can be demonstrated by testimony of the victims, that it would move everything forward. It would mean a fair and just system, or a fairer and more just system, and a process that victims themselves could come away saying, you know, I understand the system itself is not compassionate, but I appreciated the sensitivity and the pursuit of justice in the course of my victimization, and that to me is a meaningful thing.

Len Sipes: But Chief Justice Barajas did bring up, I think, a very important point that the judiciary still needs to guarantee the rights of the crime victim. The judiciary used to sit back and be separate from the rest of the criminal justice system, and I understand that sense of impartiality. I understand that need, that legal need to separate themselves. They’re not part of the prosecution, they’re not part of the arrest process – they’re simply there as to be fair arbitrators of the facts and the law, and that’s their job. I understand the detachment, but nevertheless, you can have that legal detachment and at the same time be extraordinarily sensitive to the rights of the victim. I think that’s what the judge was saying, and so I don’t want to let the judiciary completely off the hook, regardless of the job the rest of us do in terms of victim services. When that victim gets to court, that judge should still ensure that that victim, that his or her rights are taken care of and the judge should ask. He said, why can’t the judge ask from the bench? What’s there legally to stop the judge from asking from the bench about the rights of the victim? So I still think that’s a great idea, and this is one of the reasons why I think that it was pretty neat for a former Chief Justice, Richard Barajas, from Texas Court of Appeals in El Paso, Texas, to come onto the radio program for the first 15 minutes and explain that concept.

Will Marling: That’s exactly right. Now, I think what happens is, some people would argue that you have to pit rights against rights, so if you give more rights to victims, actually you’re taking away from the rights of the accused, but that’s really not the case because they can run parallel. If it’s an understanding, just like the judge was saying, if you get up and say, we want to affirm the rights of the accused, we want to affirm the rights of the victims and move forward to protect the rights of both parties in this endeavor, wow, that’s a powerful way to handle this. But if you do think that it’s a take-away, if I give you more rights I’m taking more rights away from this other party, then that’s a problem. But no victim really, I don’t think, wants the wrong person accused of a crime. They really don’t because that means that the person who truly did it is still out there and has not been held accountable.

Len Sipes: They simply want justice for themselves and they want justice for their families and justice for their communities and justice for the rest of the criminal justice system. Well, you’ve got the final word. We need to wrap up. Will Marling, the Executive Director of the National Organization for Victim Assistance, one of the most respected, I guess, advocacy groups within criminal justice circles, been around for decades and decades. I really appreciate you being on, and Richard Barajas the Chief Justice, Senior Status, Texas Court of Appeals in El Paso, Texas. Chief Barajas is now doing a college program at Cathedral High School at El Paso, Texas, and so we really appreciate him coming on today. The website for the National Organization for Victim Assistance is www.trynova.org. www.trynova.org. Feel free to get in touch with them via the website. Ladies and gentlemen, this is DC Public Safety. We are up to 230,000 requests on a monthly basis for the radio and television shows, for the podcasts, for the transcripts, and for the blog, and we really appreciate all of your comments. We appreciate even some of your criticisms and suggestions in terms of new shows. Feel free to get back in touch with me via Leonard.sipes@csosa.gov or follow me via Twitter, that’s twitter.com/lensipes, and please have yourselves a very, very pleasant day.

– Audio ends –

Terms: court, judicial, victim, victim rights, crime victim, judge, NOVA

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