It’s Time to Take Marsy’s Law to Court


TOM STROMME/Tribune Shane Goettle, a member of the committee sponsoring Marsy's Law, speaks at a press conference in the state capitol on Tuesday morning prior to petitions, shown in front of podium, being delivered to the Secretary of State's office. In back from left are Marsha Lembke, Burleigh County Sheriff Pat Heinert, Kelly Leben of the Burleigh County Sheriff's Department, Lacee Anderson, Kathleen Wrigley and Nicole Peske. For a video of the press conference go to

Last year the voters approved Marsy’s Law, a constitutional amendment which will supposedly make our legal system more just by giving victims and their families rights.

Nearly every facet of our state’s legal community – from cops to prosecutors to defense attorneys to judges – opposed the ballot measure arguing that it could create real headaches for the criminal justice system. But because the initiated measure process allows for the creation of lengthy, complicated public policy by an electorate which, for the most part, knows no more about that policy than what they’ve seen in television commercials we’re stuck with it.

When actor Kelsey Grammer speaks on complicated legal issues, the public listens. Marsy’s Law passed with 62 percent of the vote.

Now we’re stuck with this stupid thing and – surprise! – it’s creating problems for the criminal justice system.

It’s not just a headache for law enforcement, who now must do their jobs in accordance with yet another feel-good political mandate. It’s impacting the process by which we establish guilt or innocence.

“It seems that the Ward County State’s Attorney’s Office interpretation of Marsy’s Law has resulted in difficulty for lawyers trying to prepare a defense for their clients,” reports the Minot Daily News.

At issue is the Marsy’s Law protections for the identity of victims. Taken at face value it seems like a nice thing. Who doesn’t want to protect victims, right? There’s just a little problem called the U.S. Constitution which guarantees the accused in the criminal justice system to confront their accusers.

It’s an important right. How can you defend yourself accusations that you victimized someone when you aren’t allowed to know who the victims are?

That’s what is happening in Ward County right now:

Raissa Carpenter, a public defender for accused robber and attempted murderer Javontez Barnes, told North Central District Court Judge Richard Hagar Thursday that the state’s attorney’s office claimed Marsy’s Law is the reason it turned over documents in the Barnes case with the names and addresses of alleged victims heavily redacted. She said public defender offices across the state have been consulted and no other office has reported any changes in the discovery process or that state’s attorney’s offices have refused to identify victims in discovery documents. Carpenter said she needs to know the names of the victims and their addresses to begin preparing a defense.

The prosecutor in the case says she wants a court order before she’ll turn this information over to the defense lawyer, but even then she doesn’t want the information making it into the hands of the defendant. “[Ward County Deputy State’s Attorney Kelly] said she also wants an order that defense attorneys cannot turn over physical copies of the discovery documents to defendants, as the state’s attorney’s office doesn’t want those documents or victim names passed along among inmates at the Ward County Jail,” the Minot Daily reports.

Keep in mind that rights such as those in the 6th amendment belong to the individual. His or her legal counsel may invoke those rights on the individual’s behalf, but they belong to the individual.

Here’s the specific language at issue in the above situation from Marsy’s Law, which is now Article I, Section 25 of the state constitution:

This conflicted policy. It gives “all victims” the right to refuse to cooperate with the defense and withhold information from them. Sure, it says that right shall not “abrogate” the 6th amendment (which gives defendant the right to confront witnesses against them), nor diminish disclosure to the defense, but that’s the problem.

The language sets up rights for the victim which directly conflict with the rights of the defendants. Now the courts have to sort it out.

Will they come down on the side of protecting the rights for the accused? Who knows. That ought to frighten everyone concerned with just outcomes in the criminal justice system.

Marsy’s Law needs to be challenged and overturned.