Robert Wefald: Marsy’s Law Is Bad Law

I am a retired North Dakota State District Court Judge. I am well acquainted with our US Constitution and our North Dakota Constitution as well as our criminal justice system, its procedures and laws. Under Measure 3 I am a crime victim as I stand in the place of my son who was killed in Kings Canyon National Park in California on August 31, 2013. He was riding in the bed of a pickup after a late night party driven by a man who had too much to drink, who had been using drugs and who was driving way to fast.

He pled guilty in the US District Court to a felony of Involuntary Manslaughter and a misdemeanor of a second offence Operating a Motor Vehicle Under the Influence of Alcohol or Drugs.

Measure 3 will create bad and unnecessary constitutional law. I find one provision of it to be unconstitutional. The 6th Amendment to our United States Constitution gives the accused “the right … to be confronted with the witnesses against him.” Thus our Constitution guarantees an accused the right to examine the testimony of witnesses, including the victim, and that includes the right to be prepared for trial by examining the state’s evidence through deposition and discovery.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]We do not allow victims of crimes to control or influence the disposition of cases brought people accused of crimes.  Measure 3 will add pressure not only to the sentencing process, but also to the entire criminal justice system.[/mks_pullquote]

Measure 3 specifically provides a victim with “the right to refuse an interview, deposition or other discovery request made by the defendant, the defendant’s attorney.” This defect is not cured by subsequently providing “Nothing in this section shall abrogate a defendant’s Sixth Amendment rights under the United States Constitution.”

Measure 3 enshrines in our North Dakota Constitution the name of a victim of a crime in California. No other person’s nickname is in our Constitution, but Measure 3 will place in our Constitution a requirement that the “This information shall be made available to the general public and provided to all crime victims in what is referred to as a Marsy’s card.”

Marsy is Marsalee Nicholas who murdered by her ex-boyfriend in California in 1983. Her brother is billionaire Henry Nicholas who in 2009 formed Marsy’s Law for All, which seeks to amend every state constitution as well as the United States Constitution. One result would be to enshrine his sister’s nickname in every constitution. It is unprecedented to place into our constitution the name of any individual, let alone the name of the victim of a California crime. This is bad constitutional law!

Measure 3 is overly broad and it imposes encumbrances on the judiciary.

Measure 3 will increase costs to counties by requiring more victim advocates to be hired by states attorneys. Burleigh County already has three victim advocates and if Measure 3 is passed more will have to be hired.

Our criminal justice system must remain dispassionate in the handling of persons accused of crimes. We do not allow victims of crimes to control or influence the disposition of cases brought people accused of crimes. Measure 3 will add pressure not only to the sentencing process, but also to the entire criminal justice system.

Measure 3 will increase the costs of parole and probation.

Measure 3 is simply bad constitutional law! I strongly urge a NO vote.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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