All the king's horses...

vic·tim   noun \ˈvik-təm\
1 : a living being sacrificed to a deity or in the performance of a religious rite2 : one that is acted on and usually adversely affected by a force or agent : asa (1) : one that is injured, destroyed, or sacrificed under any of various conditions    (2) : one that is subjected to oppression, hardship, or mistreatment b : one that is tricked or duped 

Both Scott Greenfield and Jeff Gamso have posted recently about bending the rules so that the "victim" of a crime gets a say-so in how a case is resolved. While politicians love to court votes by being "tough on crime," too often they are just butchering the Bill of Rights. They open their mouths without stopping to think that without a crime, there can be no victim.

Take a second to let that sink in. Until a person has been found guilty (by plea or by trial), there was no crime. It is only after the conviction that we can conclude that a criminal act took place. It is only then that there is a "victim."

It's not unusual where I practice for the police to be called out on a domestic disturbance call where there is an allegation of an assault. Upon arrival, the police will arrest the male and he will be charged with assault of a family member. Then, after she realizes that her husband or boyfriend is being charged with a crime, the woman will either contact the defense attorney or the prosecutor and try to get the charges dropped.

Then, when we appear at the courthouse, the prosecutor will tell me that, even though the complaining witness has signed an affidavit of non-prosecution and has told the prosecutor she will not cooperate in the case, he is powerless to dismiss the case because the man was accused of a crime.

But, try to work out a plea on a more serious felony matter and the prosecutor will tell you that he or she must consult with the complaining witness to see if they're okay with the proposed resolution of the matter.

You can't have it both ways. Either the complaining witness has a role in the prosecution or they don't.

Whenever one of our clients is charged with a criminal offense, the charge reads "The State of ___" or "The People of ___" or "The Commonwealth of ___" on the left side of the vs. It's not "Jane Doe" vs. "Joe Bob." And it shouldn't be.

If Jane Doe wants to exact her revenge on Joe Bob, she can hire an attorney and file suit at the civil courthouse alleging that Joe Bob committed any of a number of torts against her or her property. Now she might not be happy that the only recompense she can get is money (if she can collect) - but she's not being made whole at the criminal courthouse, either.

Our justice system can't unring the bell or undo the damage that's been done. Ir can't make an injured party whole. The civil system can award money to the victim of a tort and the criminal system can punish a person deemed to have committed an offense. But that's all it can do.

If the alleged victim of a criminal offense wants his or her voice to be heard, sit at the witness stand and testify under oath as to what happened and how it affected your life. Subject yourself to cross-examination. There is no place in the criminal courtroom for a so-called victim impact statement. Presumably the prosecutor has either talked with the alleged victim or has enough experience to know what an appropriate offer for a given crime is. I would also assume the judge has a pretty good idea of what's appropriate sentence.

See also:

"Failure to yield the right of way," The Defense Rests (May 24, 2011)

Failure to yield the right of way

Look really hard. Read every word. I guarantee you won't find the words "finality" or "closure" in the Bill of Rights. Not in the 4th Amendment. Not in the Fifth. Nor the Sixth or Eighth Amendments.

The state, and the judiciary, seem to think that the concept of "finality" is inherent in our system of (in)justice.

There is no sanctity in the concept of finality. And when the currents of justice and finality intersect, finality must yield the right of way. Jeff Gamso writes about a gentleman named Ezell Gilbert. Mr. Gilbert, it seems, made some bad choices and found himself in the federal penitentiary. The length of his stay was determined by a judge drawing lines on a matrix based on a finding that Mr. Gilbert was a career criminal. Mr. Gilbert protested, to no avail, that he was not a career criminal and that the sentence was 8 1/2 years too long.

Fast forward ahead 11 years and the US Supreme Court decided that another individual's sentence was determined incorrectly based on a finding that he was a career criminal. Mr. Gilbert filed a writ seeking a reduction in his sentence based upon the finding by the nine in black.

A panel from the 11th Circuit Court of Appeals heard Mr. Gilbert's appeal and found in his favor. The state asked for a hearing in front of the entire court. Last week, finality failed to yield the right of way and Mr. Gilbert was denied relief.

In a blistering dissent (and should there be any other kind?), Senior Judge James Clinkscales Hill called out his colleagues for allowing finality to trump justice.

I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity. 

A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.

The same argument can be made about this idea of "closure." There is no such thing as closure.

Whatever happened, happened. And nothing can change that fact. If someone was the victim of a criminal act, they can't erase that. If anyone has ever had a friend or loved one killed, there will never be closure. Everyday is a new day to remember that someone isn't around anymore. Nothing that happens to the person convicted of the crime is ever going to change that.

The notion that somehow the need for "finality" and "closure" trumps the fact that we are all entitled to due process of law and the protections of the Bill of Rights is an insult to everyone who has fought to defend our freedoms and liberties in any forum. From the bench, it is an excuse for the unwillingness of the judiciary to ignore the denial of due process.

Mussolini made the trains run on time. So fucking what. Do you want cruel and ruthless efficiency or do you want justice?

Justice and freedom aren't very tidy concepts. They don't lend themselves to efficiency. But there are things more important than whether the trains run on time. Or whether we have "finality."