My statements and opinions are my own. My statements are based on practicing criminal law for 35 years as a prosecutor, part-time judge, and defense attorney.
This measure is unnecessary, inappropriate, and will result in harm to crime victims. “Marsy’s Law” is driven by an eccentric billionaire from California and is funded by him evidently to memorialize his sister who was a crime victim. He has paid more than a million dollars for an ad campaign in North Dakota which has been misleading and deceptive.
It’s in law already
The false premise of this measure is that alleged crime victims are mistreated in the North Dakota criminal justice system. Alleged victims and witnesses in criminal cases are treated with fairness and respect by judges, prosecutors and defense attorneys.
Alleged crime victims and witnesses are protected from intimidation, harassment and abuse by the Rules of Ethics, the Rules of Evidence, the Rules of Criminal Procedure, and Statutes. Any lawyer who does harass or intimidate an alleged victim or witness is subject to discipline. Any criminal defendant who does harass or intimidate an alleged victim or witness can face additional charges. Judges who mistreat alleged victims or witnesses are subject to sanctions.
North Dakota has protected alleged crime victims and witnesses by specific statutes since 1987; N.D.C.C. Chap. 12.1-34, “Fair Treatment of Victims and Witnesses” and N.D.C.C. Chap. 12.1-35, “Child Victim and Witness Fair Treatment Standards.”
The proposed measure conflicts with numerous rules, statutes and provisions of the state and federal constitutions. The numerous existing protections have worked well for almost 30 years. It is unclear what the impetus for this measure might be; the proponents have not documented any credible instances of abuse which would drive a need to do anything new or different.
What is a ‘victim’?
The measure’s definition of a “victim” is unclear. Essentially, anyone could style themselves as a “victim” and seek to invoke the “rights” enumerated in this ballot measure. In many cases, a “victim” cannot be identified at all prior to a finding of guilt, through a verdict or guilty plea. Implicated are the presumption of innocence and legal and affirmative defenses.
The measure ignores numerous practical realities. Some people who make reports to the police exaggerate, misrepresent, and even lie for myriad reasons, often with ulterior motives — to gain an advantage in a custody dispute, or a civil dispute, or for personal revenge or retaliation.
If lawyers are unable to interview or depose alleged victims, the only recourse would be cross-examination in open court. Private interviews and depositions spare the alleged victim public embarrassment, and often facilitate settlement. Providing the proposed access to reports and other
sensitive information would taint the process and violate other innocent parties’ privacy rights. The proposals in the initiative will create unwarranted added costs to the system, potentially substantial costs. Many of the rural counties in North Dakota are served by part-time prosecutors who would be overwhelmed by the requirements.
Someone to listen
Perhaps the proponents of this measure and the people they seek to help would be better served by seeking substantial additional public and private funding for crime victim reparations. The majority of persons convicted of crimes are incapable of paying substantial restitution and reparations, due to
addiction, mental illness, mental and physical disability, and collateral consequences which prevent gainful employment.
I have observed in my private relationships and in my law practice people who feel unfairly treated simply want to be heard. They need someone to listen and show empathy and sympathy for their difficult situation.
The money spent by the measure proponents on their ill-advised and misleading campaign would have done great good if it had instead been given to the proven victims of crime.
Vote “no” on measure 3.
Mertz is a Fargo attorney.