Victim Impact Statements: "Justice cannot be for one side alone, but must be for both"

By Randy McCall

The title of this piece is actually a quote from Eleanor Roosevelt. It came to mind a couple of weeks ago, when I was scanning the news and saw this article:
'Dry-eyed justice': Judge questions impact of victims on rulings

A ruling by New Brunswick’s top court that declares victims “cannot be allowed to hijack” a trial and chastens a judge so moved by tearful accounts of loss that he doubled an expected sentence is prompting debate over whether it is time to rethink the judicial system’s focus on victims’ rights.
The judgment has victims’ rights advocates warning their voices are being silenced, but has others applauding the court’s appeal for what the judge described as “dry-eyed justice.” Over the past two decades, victim impact statements have become dramatic and compelling features at most criminal trials.

From a totally detached and legal viewpoint, the judicial ruling makes sense: do we want a justice system where emotion overrules fairness and equitable treatment? Defence lawyers certain do not, and the general public understands that such a system would be inherently unstable and unfair. But how do victims feel?

While every victim I have ever talked to wants to ensure the perpetrator gets just punishment for their crime; the word they stress is "just". I've never met one who believed that their victim impact statement should so sway a judge or jury that the perpetrator would be given two, five or ten times the sentence which the law prescribes.

Let's be precise. Victims want to be treated like human beings: they want to be informed and consulted on the progress of the trial and any plea bargains; they wish to be heard, understood, and make a sometimes impassive and uncaring justice system realize the full impact the crime has had on their lives.

They want to see the perpetrator sentenced according to law of the land; they might wish for a maximum sentence, but they don't wish to see the justice system turned on its head.

Victim impact statements are the method by which they attempt to get across to the court the toll the crime has had on their lives.

In general, the courts heavily control what can and cannot be expressed in victim impact statements, how it can be said, and they certainly control when this statement is heard (only after the offender has been found guilty). All this is done to ensure fairness to the offender, and no judge should use a victim's statement to make a mockery of justice.

But, as the title of this piece says, justice can't be for one side alone. While it is just and fair that offenders be protected against overly emotional judges and sentences, there is an area where victims and witnesses are exposed to emotionally devastating treatment. In the name of the justice mentioned above, we need to see this corrected.

As everyone knows, crime victims are often witnesses as well, called before a court to be examined, and then cross-examined, under a set of arcane laws and rules they know little about.

While on the stand, and particularly when undergoing cross-examination by the defence, victims are open to a tactic commonly known as "aggressive cross-examination". Defence lawyers use verbal attack, haranguing and aggressive questioning of the victim in an attempt to cause them to make a verbal mistake, or utter any statement which the defence can then use to argue the victim is lying, was mistaken, or (and this is the worst) somehow deserved to be victimized.

Of course the prosecutor can object if the defence counsel goes too far, but the defence is often allowed wide latitude by the court, which wants to ensure the accused receives a fair trial, and to avoid having judgments overturned on appeal.

The issue here is not only the tactic in itself, but that the criminal justice system as a whole supports the use of such tactics. Many lawyers believe that the use of such a tactic is quite legitimate, supplying the accused with as full and complete a defence as possible... the basic thought seems to be: "If it works, great. If not, it was still worth a try".

Little thought is given to the psychological effects such a tactic might have on an already traumatized victim. Judith Lewis Herman said it best:

"If one set out by design to devise a system for provoking intrusive post-traumatic symptoms, one could not do better than a court of law"

There are certain groups which most courts label as "vulnerable witnesses"; these are offered some protections and extra support. Normally this list includes children, the mentally ill, and victims of sexual assault.

All other adult witnesses -- no matter what their traumatic experiences or mental state, short of incapacity -- are legitimate targets for aggressive cross-examination.

To me, seeing a court system demand dry-eyed, unemotional sentences for the perpetrator, yet at the same time allowing... nay encouraging... the perpetrator's lawyers to verbally attack emotionally vulnerable witnesses to the point of breaking, displays a glaring inequality in the justice system.
The question then becomes, "what can be done about it"?

There is a developing school of criminal justice thought called Therapeutic Jurisprudence. This school of legal thought focuses on creating a criminal justice system which also takes into account the mental and emotional health of all who pass through it.

It examines the roles of lawyers and judges, and suggests they take an interest not only in the law and the rules of court procedure, but in the mental and emotional well-being of their clients.

I would call on criminal justice systems around the world to realize the possibility exists their court systems can deliver as traumatic a blow to the psyche of crime victims as the criminal did in committing the originating offence. Our legal system has developed over centuries, altering and adapting as new sciences technologies came along. It's time to apply the sciences of psychology and mental health to law as well.

In the name of the dry-eyed justice first mentioned above, I'd like to call on courts to begin re-considering their policies and procedures, and take into account the potential traumatic effects they expose victims and witnesses to.

Justice, fair treatment and physical and emotional safety should be guaranteed not only to the perpetrator, but to the victim / witness as well.

For those who are interested in background information on aggressive cross-examination or therapeutic jurisprudence:

• Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children
• Consultation Paper Vulnerable Witnesses in Civil Proceedings
• High Court of Nambia Vulnerable Witnesses Project
• Key Findings from Vunerable Witnesses Survey
• Propriety and Impropriety in Cross Examination
• Therapeutic Jurisprudence and Adversarial Injustice: Questioning Limits
• Transforming Aggressive Prosecution Policies: Prioritizing Victims' Long-term Safety in the Prosecution of Domestic Violence Cases
• Victim Participation and Therapeutic Jurisprudence: A Canadian Perspective
• Vulnerable and Intimidated Witnesses: A review of the literature
• Vulnerable Witnesses - Rights and Responsibilities

People Perish for Lack of Knowledge

By Charles Moncrief

These words from Hosea 4:6 were originally addressed to a people in a religious context. Taken in a vacuum, these words are applicable in our time -- especially when the result of ignorance has tragic consequences.

For an example, here is the opening paragraph of Susan Murphy-Milano’s journal entry.

It was two days after Christmas and 18 days after the ink barely dry on the divorce papers when, Matthew Schneider stormed into the home of his ex-wife [Brandy] as their 8year-old watched when "daddy" shot Mom and her new boyfriend multiple times before turning the gun on himself.

Brandy had filed for divorce from Matthew in April, even though Matthew had threatened to kill her. Her pleas for protection either went unheeded or resulted in tragically inadequate criminal action.

What can we learn from Brandy’s tragedy? Where did the legal system fail? Realistically, we should ask a different question: Where did the legal system fail this time?

Matthew Schneider spent the first year of their son’s life in prison because he had beaten Brandy severely, at least once while she was pregnant. Matthew was a juvenile sex offender, a convicted felon, and under house arrest at the time of the incident. He had made threats to kill Brandy if she divorced him. He had made harassing, and perhaps threatening, phone calls to Brandy following the divorce. And he possessed at least one firearm.

While this tragedy may have been preventable, my purpose is not to complain about the system’s failure. I’d rather address some misconceptions we may have about our nation’s legal system.

First, however, let me give a disclaimer. Please seek competent legal advice for any action you take after reading this. Nothing here is intended for any purpose other than to disclose facts, though they may betray a certain cynicism on my part.

Divorce cases are civil matters. The specifics of civil cases, such as details of the outcome and the proceedings themselves, are often placed under a gag order. So the evidence, rulings on admissibility, and testimony, remains unknown. To speak later about the case is to risk a contempt citation. This gives us two important clues that more can be done.

First, the operative word is "later." Critical documents and other materials gathered for presentation should be recorded privately as soon as the decision is made to proceed in the civil courts. In Brandy’s case hospital records, the prior criminal proceedings against Mathew, as much detail as possible describing the path to be taken (photographs, diagrams, grounds, names of parties, witness information, evidence to be presented, relief sought, etc.), and any other material should be made safe and a chain of possession established. One way to do this is to mail the documents, with a clear date-dime stamp from the Post Office, to a trusted friend or other person not involved in the case. This person must keep the container sealed until needed. These materials are exempt from any court ruling against disclosure, since the judge’s contempt power cannot reach the recipient of US Mail who has no standing in the case. The judge’s contempt power cannot reach backward in time either, making a readable date-time stamp absolutely imperative.

The next operative word is "gag." Not everything about a civil case can be gagged, and the gag can usually be lifted in a criminal case or by a civil appeals court. Examples of items not gagged are case ID (number and name), court, judge, and counsel. All of these are public record and subject to open disclosure.

Disclosure is the key to this article. Most people know very little of the recourse available following an unjust outcome or inappropriate proceedings in a court case. If a judge misbehaves or issues an inappropriate ruling, including a contempt citation, a person can file a complaint with the state’s commission on judicial conduct. Whatever the official name of the commission from one state to another, the purpose is the same: to allow a private citizen a measure of recourse against a defective judge. Any citizen can file a complaint with this commission for little or no cost, and that person need not have any standing in the case involved. Immediately the non-gagged items become useful. The citizen has the right to demand that the commission assign a case number to the complaint and to proceed with an official investigation. The least that occurs following such a complaint is that the judge must make an official response to the commission, and the complainant is exempt from any retaliation by the judge. And depending on the findings of the commission, action against the judge may be of benefit to all of society.

This should go without saying, but apparently it is not obvious so I’ll include some warnings.

• DO NOT approach the commission on judicial conduct until the case is closed. An angry judge is not a good thing to trust.
• DO NOT let your emotions direct your actions. Be at least strongly convinced that the judge did act inappropriately and not just in a manner that offended you. To proceed in good faith will protect you from legal action if your complaint seems frivolous.
• DO NOT write anything containing slander or libel about the judge. And while you cannot write about the detailed proceedings, you can mention in your call for investigation that a gagged item bears scrutiny.
• DOCUMENT your actions outside of the system. The judge cannot legal recourse, but social and unofficial retaliation can occur. This is not about secret police or midnight fire-bombings; it’s more like casual comments to your employer, to HR when you apply for a job, or a blackball if you run for office in the Rotary Club.
• Depending on the level of fear you may have about retaliation, you may want to notify the attorney general and local news media. Then if anything does happen, records are on file.
  

Note that if you file a complaint with the commission, it may have no apparent effect as far as you are concerned. But you establish a history for that judge. When the next person issues a complaint, the presence of previous action will be considered at least subjectively. The judge must then respond not only to the complaint itself, but to the repetitive nature as well.

The same sort of recourse is available against an attorney, though it’s more likely that the complainant must have standing in the case. Every attorney is a member of a local and perhaps a state bar association, and any person directly affected by an attorney’s misbehavior has the right to complain to the bar and request an investigatory hearing. Again, please avoid frivolity and emotion. And recognize that the course of any investigation will include an attempt to make you look and feel like the slime of the earth. It’s merely procedural, and it should not be taken personally. The slime is the system, not you.

I want to add one more caution, which is also not immediately obvious. Your attorney is not your friend. He or she is an officer of the court, and your case is not important enough for your attorney to risk being blackballed against practicing in a particular court. So any discussions about taking recourse, or sending materials to a friend ahead of time, should not take place with the attorney you have hired. Rather, you should consider an attorney in another jurisdiction, and another state if possible. The attorney then is not able to give you legal advice, but you can learn of general processes and acquire some resources to increase your chances of successful recourse when the system fails.

If you asked why a person with no standing in a case should proceed against a judge who misbehaves, I’ll refer back to the original theme. Notice the words were "People Perish for Lack of Knowledge" and not "A Person Perishes for Lack of Knowledge." The societal impact of court proceedings, and of the behavior of all court officers, is far greater than the outcome of a single case. Therefore, while you may think a judge who misbehaves is none of your business, a misbehaving judge is EVERYBODY’S business. If a defective judge knows he or she no longer enjoys the protection of anonymity or intimidation, the quality of our court system may be restored to a level resembling the original intention of our nation’s founders.

Brandy Schneider’s case was not isolated. Change a few details and you have thousands of other incidents that occurred in just the last ten years. The breakdown is not only serious; it is progressive. But the good news is that it is reversible, if only we will take the measures that are available to us.