Marsy’s Law Is an Affront to the Rights of the Accused


James Patrick Whalen enters elevator Thursday morning after making his first appearance in court .Jesse Trelstad/ Grand Forks Herald

Earlier this month I flagged a criminal case out of Grand Forks involving a teacher who allegedly had sex with a student as an example of why we don’t need Marsy’s Law.

Marsy’s Law, of course, is the pet project of California billionaire Henry Nicholas which has been placed on North Dakota’s November ballot (read it here). If approved by voters it would enshrine what are supposedly victim’s rights in the state constitution, among them the right to refuse pre-trial questioning by criminal defense attorneys and/or their investigators.

But the Grand Forks case illustrates why this would be folly. Worse than folly. A right for prosecutors and law enforcement to promote injustice in the criminal justice system.

In that case the attorney for defendant, James Patrick Whalen, requested an opportunity to depose Whalen’s accuser. The prosecution objected, arguing that such questioning would further victimize the alleged victim. The judge came down on the side of the defense, rejecting the idea that prosecution and law enforcement can interview the alleged victim for hours while the defense cannot interview them at all:

Hoy argued the defense has not had the opportunity to interview the student and an action that has not happened cannot be repeated. He also questioned why the state was concerned with interviews causing the victim stress when the defense wanted to interview her. The state’s argument would have “held more water” if law enforcement agencies had collaborated with school officials to interview the victim once instead of four times, he said.

“Nowhere in the record is the state’s outrage or concern expressed about law enforcement interviewing her (four) separate times for up to five hours and causing her stress of concern or emotional harm,” Hoy said. “Apparently, that’s OK. They can do it as much as they want, apparently according to the state’s view of this.”

If necessary, Hoy said, the victim could take breaks and have a “support person” present during the deposition.

Under current law judges are allowed this discretion. If they feel a request to depose an accuser pre-trial is extraneous, if a judge feels such a deposition is motivated by a desire to intimidate or would simply be too upsetting for the alleged victim, this sort of request can be denied.

If Marsy’s Law passes judges will not have this discretion. The accused will have a right, enshrined in the state constitution, to refuse deposition.

Which is great for the crowd who thinks an accusation is as good as a conviction. Those who think the already lopsided contest between the vast resources of the state and the generally limited resources of defendants should be made even more unbalanced.

But for those of us concerned with due process and just outcomes such a turn of events would be a travesty.

I have no idea if Mr. Whalen is guilty of innocence. I am happy that his defense team will get the opportunity to question his accuser. Because of that we can be more confident in the accuracy of the ultimate verdict in his case, be it for or against him.