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Nicholas Foundation and MarsysLawForAll

Henry Nicholas III, left, and his mother Marcella Leach lead a march with a photo of his sister Marsy Nicholas at a victims' rights march in California, in 2013. Nicholas is bankrolling Marsy's Law, a victims' rights constitutional amendment that has been approved by voters in nine states and has been introduced in Wisconsin.

Victims would have more say in criminal prosecutions if voters approve a proposed state constitutional amendment, but critics say the plan could weaken the rights of defendants, slow prosecutions and increase the workload in understaffed district attorney offices.

The proposal dubbed “Marsy’s Law” was introduced this month by a collection of powerful Republicans. Some victim advocacy organizations, police organizations, prosecutors and lawmakers have gotten behind the proposal, which is being promoted by a politically connected public relations campaign and funded by a California-based billionaire who named the effort after his murdered sister.

Supporters say the law puts victims on equal footing in the court system with defendants. But criminal defense attorneys call it a political stunt, and some advocates for crime victims and criminal justice experts question whether the proposals will have unintended consequences.

“Obviously (we are) very supportive of protecting victims’ rights and expanding victims’ rights when applicable and ensuring victims have a fair and just experience in the criminal justice system,” said Chase Tarrier, public policy coordinator for End Domestic Abuse Wisconsin. “The concerns that I and other folks (have) about this bill is the possible unintended consequences that might come about if we don’t really take our time.”

If passed, the state constitution would guarantee crime victims 17 rights including equal standing in court as defendants, keeping information private that could be used to locate or contact the victim, allowing them to be present at all court proceedings and to confer with prosecutors and provide input on pleas, deferred prosecutions and other agreements.

Victims also would be notified immediately if a defendant is released from jail or prison, escapes or dies while in custody and would be able to speak at any court proceeding at which defendants may be released, sentenced, paroled or pardoned. Victims could also refuse an interview, deposition or any other discovery request made by the accused or their lawyers.

Crime victims already have a host of rights, many of which are described in the state’s first-in-the-nation victims’ rights law; this amendment would enshrine some of those in the state’s charter.

“We put some (rights) into the constitution but not all the ones that I think are necessary to make an even — or closer to even — playing field,” said Sen. Van Wanggaard, R-Racine, co-author of the proposal. “We want to make sure there’s no question that victims have a right to be heard and that victims have a right to be protected .”

Defense lawyers worried

Marsy’s Law is named after Marsalee Nicholas, who was killed in 1983 by her ex-boyfriend. It has been bankrolled by Nicholas’ billionaire brother, Henry Nicholas III.

In Wisconsin, one of the public faces of the amendment campaign is Christina Traub of Madison, who was viciously attacked by her ex-boyfriend in 2015.

Traub said she relied on the state court system’s public website to keep track of court hearings. A Dane County victim advocate kept her in the loop sometimes, she said, but she was generally on her own to know where the court process stood and depended on Facebook to find out where her ex-boyfriend was working or living.

“Nobody would be (in court) if it wasn’t for me and what happened to me,” Traub said she remembers thinking while sitting in the back of the courtroom. “And I just felt very unimportant.”

Criminal defense attorneys, however, say the proposal would weaken the ability of the accused to defend themselves at trial.

“I think it’s a political publicity stunt,” said Anthony Cotton, a Waukesha criminal defense attorney. “It’s designed to create the impression that somehow victims of crimes are left out of the process and it’s a suggestion that therefore guilty, dangerous people are roaming the street and terrorizing citizens.

“And that — as anyone who works in the system knows — is patently untrue.”

John Birdsall, a Milwaukee criminal defense attorney, said the proposed amendment “attempts to make a mockery” of the Fourth, Fifth and Sixth Amendments, which promise people accused of crimes due process and a fair and impartial trial.

“The founders of the United States and of the state of Wisconsin saw rights of the accused as paramount to the existence and survival of our democracy,” he said, adding that such an important idea “is being perverted into a negative: those accused have way too many rights and they must be curtailed.”

Birdsall also said the right of the accused to confront their accusers could be affected by giving victims greater ability to keep information about themselves private.

“The actual practice of hiding evidence like this makes it impossible to honor this most critical of rights,” Birdsall said. “The view seems to be, by those that support this, that we need to reduce the ability of a defendant to mount any sort of a defense.”

Proponents of the amendment said all evidence that is part of a criminal investigation would still be available to the defense and that the amendment would only allow a victim to deny requests for personal records or information not part of a criminal investigation.

Representatives of the DOJ, which is overseen by Attorney General Brad Schimel who appeared at a Capitol news conference to back the amendment when it was introduced this month, have not responded to numerous questions from the Wisconsin State Journal.

Experience in other states

Versions of the amendment have been approved in nine states, where in some it has caused confusion.

Montana lawmakers this year introduced a bill to clarify that the amendment’s notification requirement doesn’t apply to victims of low-level crime such as traffic offenses.

Stephen Baker, a lobbyist for the Cook County Public Defender in Illinois, said concerns over the amendment, which was approved in 2014, were related to discovery.

Baker said his concerns were rooted in changes to what kind of personal items or statements from victims, such as psychiatric and drug and alcohol treatment records, could be sought as evidence.

He said in one case, a diary of a victim kept during counseling over the alleged crime showed some of the details of the allegations were incorrect, making that evidence crucial for the defendant’s case and illustrated the need to preserve access to such information.

And law enforcement agencies in North and South Dakota have limited public information about crimes, including where they occurred.

Wanggaard said because many of the amendment’s requirements already exist in Wisconsin, the transition should be easier.

More work for prosecutors?

It’s unclear how district attorney’s offices would seek more input from victims — especially if their offices are already understaffed.

“There’s always resources issues but we’re doing most of this now,” Brown County District Attorney David Lasee said. “I don’t think it’s going to substantially change the workload that we have.

“I think a lot of this, some of this is somewhat symbolic in telling the court, ‘Hey look, (victims) are on an even playing field.’ ”

Dane County District Attorney Ismael Ozanne said he doesn’t know what the amendment’s impact would be on prosecuting crimes — a job his office carries out currently with six fewer prosecutors than needed to handle the county’s case workload, according to a 2014 state audit.

“Prosecutors already confer with victims and we will meet with victims at every court appearance if they wish to meet with us,” Ozanne said. “In Dane County, our victim witness unit is also available to victims.

“I do believe we could do more for victims if we were adequately staffed and had better funding.”

UW-Madison Law School professor Frank Tuerkheimer, a former U.S. attorney, said requiring prosecutors to consult with victims throughout the criminal trial process would be a big departure from current practice.

“Whoever drafted this was kind of careful not to transfer power from prosecutors to victims, but simply create a rather continuous right of input,” Tuerkheimer said. “I think it would be somewhat onerous for the prosecutor.”

Were the amendment to pass without a “significant” increase in funding for the court system, the new requirements could affect individual offices’ ability to prosecute “and that could be very bad for victims of domestic violence,” Tarrier said.

Prosecutions also could be slowed because the amendment applies to victims of all crimes — not just serious, violent crimes, Tarrier said.

Proposals to amend the state constitution need to be passed by two consecutive Legislatures before going to voters.

Backers say they hope to put the measure before voters in 2019.

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