Ladd Erickson: A Prosecutor's Point Of View On Marsy's Law For North Dakota

marsy's law

Last week former police officer and current criminal defense attorney, Mark Friese, posted a very thoughtful and spot-on practitioner’s analysis of some of the pitfalls in the proposed “Marsy’s Law” initiated measure.  Viewing the content of Marsy’s Law through the lens of a prosecutor, I can only add some additional points to Mark’s post.

From a legal doctrine prospective, “Marsy’s Law” is still in the experimental or infant stage in the states that have enacted it. It began by initiated measure in California in the late 2000’s, and there is yet to be a body of caselaw, law review articles, or other sources that have studied its effects.

What few things I could find are troubling.

In reading the “victim’s rights” contained in Marsy’s Law, there is obviously a built-in leap of faith that the laws intended beneficiaries – honest real crime victims – will be the primary people the law helps if the voters enact this as constitutional law in our State. However, as Mark pointed out, North Dakota already leads the nation in protecting crime victims through our statutes, victim advocate programs and services, and court rule requirements and practices. Likely, this is why the sponsor’s press statements so far have used the “some other states have this so we should to” inferiority complex tact, instead of citations to instances where North Dakota’s current protection of crime victim rights is broken and in need of a fix.

Amending our Constitution, absent an identifiable in-state need to do so, reduces that document from a status of loft and deliberate forethought, to that of fodder for interest group politics.

So why would someone ever want to be a crime victim if they aren’t one? The answer to that is equally perplexing, and complex.

 …this is why the sponsor’s press statements so far have used the “some other states have this so we should to” inferiority complex tact, instead of citations to instances where North Dakota’s current protection of crime victim rights is broken and in need of a fix.

Some people have deep psychological problems and report crimes to get attention. Others are motived by the darkness of vengeance, spite, or jealousy. As odd as this may sound, sometimes people have a financial motive to be a crime victim.

Cases such as the lake cabin owner who had a foreclosure company mistakenly change the locks on his cabin when they should have done that at his neighbors, and the cabin owner wanted thousands of dollars from the company in exchange for not having them charged with trespassing.

Or the unsophisticated 20 year old woman who connected with an oil worker online for a sex hook up in a Washburn motel room, and then reported being raped by him after their “date” so she could get free morning after pills available to crime victims. Her medical records, online messages, and texts with the oil worker established his innocence.

Many hundreds of police reports are filed in our state every year by crime victims, with a vast majority of those being legitimate. However, each law enforcement and state’s attorney office can also provide countless examples of want-to-be victims making reports for their own ends.

Domestic violence (DV), child abuse, and child sexual abuse reports when children are in the middle of a divorce or breakup activate the radar of the police and prosecutors to proceed with great care in charging decisions. Our family laws have presumptions weighing against people getting custody or visitation when one of the parents has been convicted of DV or crimes against children. Some family law attorneys have questionnaires for new clients asking them about any criminal conduct, proven or unproven, by the other parent which could be used to help in a contest over custody.

On the other hand, sometimes it is the commission of these crimes that is the cause of the divorce or parental breakup. This entire area is very tricky. Giving lots of real-life examples of false reports to the police when children are at stake would make this post too long for consumption. A couple greatest hits I have dealt with make the same points as the many others I could provide.

When I was an assistant state’s attorney in Morton County twenty years ago a young girl called 911 to report she had been molested by her mom’s new boyfriend. Her biological mother and father were in a custody battle at the time. In listening to a tape of the call, the girl’s statements were choppy. She would say something, then stop. Say something, then stop. It sounded like she might be reading off a script. When the volume was turned way up on the call you could faintly hear her father whispering in the girl’s ear what he wanted her to say about mom’s new boyfriend, word for word.

Or, more recently, was the case of a mom and dad split. Custody and visitation of their two year old daughter was in contest. Mom alleged that she was a DV victim of the dad, among many other reports she filed. In trying to bolster her DV allegations against the dad, mom had photos of black and blue marks on both her arms, allegedly from being punched by her husband when she tried to leave him. Eleven days after the reported incident she saw a doctor in Bismarck who wrote in the report of examination that the mom’s arms were badly bruised as a result of being a victim of DV.

Unfortunately for mom, she forgot about something. On the day of the alleged DV incident the deputy that took the call witnessed no marks on her arms. Five days later the deputy returned and did a civil standby, where a deputy stands by while people separate their property during a split. The same deputy did a second civil standby three days later. During both standbys the deputy decided to turn on his in-car video. Mom had walked right in front of the camera each day the deputy was there and had a short-sleeve shirt on. Both of mom’s arms were very visible and without any marks or bruises.

A close examination of mom’s photos showed that some of the bruises were in a perfect circle, except they had a spot in the center where the capillaries hadn’t ruptured and the skin hadn’t discolored, like it would have if the bruising was from the blunt force of a fist. In addition, the bruising got darker around the outer edge of the circle, meaning more capillaries burst in that area.

Marsy’s Law is the product of an eccentric millionaire from California who has a history of developing and funding causes he apparently likes to be considered a “crusader” for. This guy must wear a very thick set of rose-colored glasses.

The bruising on the mom’s arms matched “suction” bruises, or hicky’s you can give yourself with the end of a shop vac hose pressed against your skin. When doing that, the pressure against the skin is on the outside of the hard plastic hose end, and there’s not enough pressure in the center of the hose to break capillaries. However she did it, the mom’s bruises were fakes made to try and leverage custody of the child in the divorce proceedings. There was no trace of the bruises on the day of the alleged DV incident, nor five or eight days later. But that didn’t stop the mom from submitting in the divorce case the photos of her “bruises” along with a sworn affidavit attesting to being a DV victim from the incident law enforcement initially responded to.

Marsy’s Law enumerates a list of rights of “victims”, that include the right to prevent disclosure of medical or other confidential records, the right to deny defense requests for the discovery of non-confidential items, and a victim’s right to deny defense requests for a deposition.

Defense depositions of crime victims are not a frequent occurrence in practice because the police normally get written or taped statements from them, and the defense gets copies of those. When victim depositions do occur they can be very helpful to the prosecution because defense attorneys have a built-in motive to create a calm and open environment to illicit as many relevant facts surrounding the crime as they can. Often the defense attorney will telegraph what the defense will be in front of the jury during a deposition, which can be of great assistance to the prosecutor in preparing their case for trial. They also can serve as a truth seeking function where there is another side of the story the police didn’t get during their investigation for some reason.

Marsy’s Law is the product of an eccentric millionaire from California who has a history of developing and funding causes he apparently likes to be considered a “crusader” for.

This guy must wear a very thick set of rose-colored glasses when he views human behavior, and seemingly can only see lily white agenda free crime victims, with the reality of the cases that the police, prosecutors, and defense attorneys deal with outside of his vision.

Legitimate crime victims have nothing to fear from defense depositions. In fact, they should welcome them because they give a chance for the victim to refute the BS the defendant has given his attorney, which can create a come to Jesus moment between the defense attorney and client about getting the case settled so the victim doesn’t testify in open court against them. It is the illegitimate want-to-be crime victims that have given the police and prosecutor a convincing story or fake evidence to get someone charged with a crime who are the people most benefited by Marsy’s Law.

Our Constitution exists to provide a framework for the governance of our state, and to protect the people and their property from abuse and overreach. Never, in any reading of our Country’s or State’s history, or in the history our state and federal constitutions, have I found a glimmer of support for the concept that a constitution should be used to shield evidence of innocence from a person accused of a crime, and at the same time grant the control over whether that evidence gets disclosed to the same person who falsely accused someone of a crime to begin with. I have never heard of such a thing until I read Marsy’s Law.

Certainly, there are people of good intent sponsoring the Marsy’s Law petition in North Dakota. But something can be full of good intentions on the surface, and completely lack in common sense in practice at the same time.

One of the many things in Marsy’s Law that meets both these prongs is the right of a victim to meet with the prosecutor when they wish to, and at times this isn’t a problem. Other times it is a terrible idea, such as in most DV cases. DV victims routinely change their story after incident – often being truthful with the police when the incident is reported, only to later recant their story.

Sometimes story changes are the result of being drunk or high when the incident occurred, other times the changed story is made out of fear of losing the relationship they have with their abuser.
In all criminal cases, prosecutors have a number of special ethical duties to disclose any exculpatory information to the defense, and those duties extend to turning over information even if the prosecutor doesn’t think the information is exculpatory. In other words, prosecutors aren’t supposed to decide whether something is exculpatory or not, all information is supposed to be turned over to the defense for them to decide that question.

Certainly, there are people of good intent sponsoring the Marsy’s Law petition in North Dakota. But something can be full of good intentions on the surface, and completely lack in common sense in practice at the same time.

If a prosecutor meets with a crime victim, especially a DV victim, at the victims request as it is outlined in Marsy’s Law, the prosecutor can easily become defense witness. This exact thing happened a few years ago when I took over the prosecution of a state legislator who had been charged with DV in another county. An outside prosecutor had to take over the case because the initial prosecutor met with the legislator’s wife and she changed her story of what happened during parts of the incident her husband had been charged with, which conflicted the whole state’s attorney’s office under the ethical rules and made the initial prosecutor a defense witness.

A couple months ago when a draft of Marsy’s Law was being circulated in an attempt to get state’s attorneys around the state to support it, I got a call from a state’s attorney from a big county wanting to talk about it. I asked him how his office handles contacts with DV victims. He said that until right before trial, all contacts with DV victims go through victim advocates so if they become defense witnesses by what the victim tells them the defense can call the advocate at trial without conflicting out the prosecutors in his office. That is the same way I do it.

If Marsy’s Law passes I’ll be forced to meet with crime victims whenever they want to. But we’re not going to talk about their case during the meeting, because even slight changes in their story could conflict me out of the case and make me a defense witness. This new constitutional right to meet with the prosecutor at a “victims” beckon call is just one of the Marsy’s Law’s rights that is both full of good intentions, and completely lacking in common sense at the same time.

I guess your view of the Marsy’s Law as constitutional policy is directly related your image of what a crime victim always is. If you think that all crime victims are absent character flaws or psychological problems, never have financial motives to be a crime victim, or wouldn’t think of accusing someone of DV or child abuse to get an advantage in a custody fight, then you will probably think Marsy’s Law is pumpkin pie and vote for it.

If you think it is possible that your kid could go off to college and be put under investigation for rape after he dumps his girlfriend, or your daughter could get accused of child abuse or DV after she splits with a guy she had a child with and you want the police, prosecutor, and your kid’s attorney to have the ability to find the truth – then you should probably fear Marsy’s Law and vote against it.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and the host of the Rob (Re)Port on Fargo-based WDAY AM970 from noon-2pm weekdays.

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