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Defense attorneys oppose removal of victims’ names from filings

By: Eric Heisig//September 18, 2014//

Defense attorneys oppose removal of victims’ names from filings

By: Eric Heisig//September 18, 2014//

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State criminal defense lawyers who weighed in on a proposal to remove the names of most crime victims from filings in appeals cases are opposed to the move.

Ellen Henak, who studied the proposal on behalf of the Wisconsin Association of Criminal Defense Lawyers, said that in many cases, there is a value in having a victim’s name used in a filing.

“Once in a while identity becomes relevant,” Henak, of Henak Law Office SC, Milwaukee, said. “It’s rare, but it does happen.”

The proposal, put forth by the Wisconsin Judicial Council in January after about three years of work, would require those who file paperwork for a criminal appeal or state Supreme Court case not to use the names of victims in all cases except for homicides. Instead, attorneys would have to use pseudonyms or the victim’s initials.

It would not apply to all filings, only those that are accessible on the state courts website. This would include briefs and Court of Appeals and state Supreme Court opinions.

The Wisconsin Supreme Court is scheduled to hold a public hearing on the proposed change at 9:45 a.m. Monday.

According to a Sept. 2 letter to the court from the Judicial Council’s appellate procedure committee, “it was the committee’s intent that as additional documents become publicly available via the Internet, the rule will be extended to cover them, with the exception of appendices and records.”

The Department of Justice, which was involved in the proposal, said the idea came from phone calls it received from crime victims whose lives were adversely impacted when information about the crime committed against them was available online. Jill Karofsky, director of the Attorney General’s Office of Crime Victim Services, has said at least one caller complained of having a hard time finding a job because of a filing found online.

back_spaceThe DOJ reiterated this in a response it sent to the court Sept. 2.

“The fear and humiliation that victims feel is real,” according to the DOJ’s letter. “These anecdotes represent only a sampling of the harm crime victims suffer when they read (and know that others are reading) accounts of the these terrible crimes.”

But Henak said there is a public interest aspect to letting people know who has been victimized in certain situations. If, for example, she said, a police officer has a history of charging people with, say, committing battery during an arrest, that could be helpful for the public to know.

“I understand that things can be sensitive for victims, but the truth is most of us have been some sort of victim of a crime at some point,” Henak said. “It happens … there are a lot of things that happen in the public square … and there are good public interests for them to be public.”

Judicial Council staff attorney April Southwick did not immediately return a phone call Thursday. But she has said in the past that a victim’s name is “very, very rarely” a relevant issue on appeal. She has also pointed out that Wisconsin Circuit Court Access, which is commonly referred to as CCAP — Consolidated Court Automation Programs – already prohibits clerks from putting victims’ names on its website.

Madison attorney Robert Roth, who does criminal appeals work, agreed with Henak, saying that defending a client often means looking into a complainant’s background. If the complainant has made similar claims in the past, it is at least worth pointing out, he said.

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If those names cannot be found online, getting that information could be more difficult, Roth said.

“To say we’re going to take that person’s name out, you’ve already decided who’s the good guy and who’s the bad guy,” Roth said. “I don’t really look at it that way.”

Henak said the proposed rule should be more specific on exactly how to refer to victims. As it’s written, an appellate attorney can use initials or pseudonyms. The latter could create confusion, she said.

The State Bar’s appellate practice section has endorsed the proposal, but also took issue with the idea of using a pseudonym. Kathryn Keppel, a section member and an appellate attorney at Gimbel Reilly Guerin & Brown SC, Milwaukee, said “I don’t want to have to put ‘John Doe’ in all of my briefs.”

The state already has rules against using the names of child victims, so, in that respect, Keppel said, the proposed change will not be a big difference.

Inquiries left with the Wisconsin District Attorneys Association and the State Public Defender’s Office were not immediately returned.


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