Marsy’s Law opponents: Amendment stymies due-process rights of accused

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To proponents, Marsy’s Law – a Wisconsin constitutional amendment approved by voters in the April 7 election – will provide better protection and more rights to crime victims.

Opponents, though, see something troubling in the new amendment: a threat to due process.

When presented with Marsy’s Law on April 7, about 75% of Wisconsin voters agreed with the question, which asked if section 9m of the state constitution should be amended to give crime victims additional rights.

The law will go into effect upon the certification of the election results by the Wisconsin Elections Commission. The WEC website said state statute gives the commission until May 15, 2020, to certify the results from April 7.

The amendment duplicates many of the victims’ rights provided in the Wisconsin constitution and state law, including the right to privacy, the right to be treated with dignity and the right to attend court proceedings. Myranda Tanck, a spokeswoman for Marsy’s Law of Wisconsin, said the insertion of statute rights into the state constitution comes as a huge victory for victims.

“When victims find themselves in the courtroom, they can invoke those constitutional rights for a judge to weigh as they are debating the merits of the case and making a decision on what action to take,” Tanck said.

The new law also gives victims the right to seal information or records that could be used to find them; provides the right to be heard at plea and parole hearings; and allows victims to opt out of participating in depositions or discovery proceedings conducted by defense attorneys or opposing attorneys in civil matters, a provision that could block criminal defendants from bringing civil lawsuits against them.

Craig R. Johnson, attorney at Sweet and Associates in Milwaukee, is a member of Wisconsin Justice Initiative’s Board of Directors. He’s one of the plaintiffs in the organization’s lawsuit arguing the amendment is a threat to the rights of the accused.

The lawsuit asked for the removal of the question from the April 7 ballot, alleging it was deceptive because it had not fully explained the amendment’s likely consequences.

Dane County Circuit Court Judge Frank Remington rejected the injunction request, but questions remain over the amendment’s alleged threat to the rights of the accused. The lawsuit is scheduled for oral arguments in August.

Johnson said the amendment adds language to expand the definition of a victim to “a person against whom an act is committed that would constitute a crime,” which he views as one of several ways the amendment tips the scales in prosecutors’ favor.

“It doesn’t really track the language of crime itself, but an act committed against somebody,” Johnson said. “The difficulty there is that it sort of presumes that an act that has been committed is a crime, and therefore, there is a victim before there’s any sort of adjudication in court or determination by a judge, jury or prosecutor to bring a charge.”

Johnson said it’s unclear how the amendment will affect a criminal prosecution, but he sees various ways it could cause harm. A victim could cite privacy concerns and interfere with the accused’s due-process rights, Johnson said.

“This notion of privacy is something that can really impact a fair determination of guilt or innocence for an accused person,” Johnson said.

Tanck said the Wisconsin constitution already provides privacy rights to victims, and the amendment doesn’t significantly modify what already exists. She said while the amendment was in committee, Wisconsin lawmakers removed a privacy provision that has stirred controversy elsewhere. In some states, police officers or corporations have used Marsy’s Law to prevent their names from being released, claiming victim privacy, as a way to protect themselves.

“That provision does not exist in the Wisconsin amendment,” Tanck said. “That is not something that will be able to be employed in Wisconsin to cause problems.”

Johnson said there are protections in current law to prevent invasions of privacy, and judges are aware of the need to protect victims’ privacy. He said judges already serve as gatekeepers, often strictly applying the rules of relevancy. But if a victim wants damaging information withheld because of concerns about privacy, judges will now have to take such requests into account.

“They have to start making new determinations that go beyond just relevancy and take into account these other factors,” Johnson said. “It’s going to impact the due process rights of accused people and the right to have a fair trial ultimately.”

Johnson said difficulties might also arise if a prosecutor were to advocate for an accused person to be released from custody under a pretrial order for treatment for, say, drugs. The victim in such a case might very well want the person to remain in jail.

Before the adoption of Marsy’s Law, the victims’ concerns would have been taken into consideration, but the chances were strong the person would have been released anyway because the prosecutor was presumed to be acting in society’s best interest. Now, Johnson said, it will be left to local judges and the Courts of Appeals to decide on the best course of action.

“That’s the more philosophical problem with these sort of victims’ rights movements — they don’t recognize there are broader issues,” Johnson said. “The victim has very narrow interests that are only for them. That’s not what the criminal justice system is for. Frankly, that’s what the civil justice system is for.”

Tanck said critics of Marsy’s Laws often worry about infringments of defendant’s Sixth Amendment rights. But the Wisconsin version specifically says it cannot be interpreted to give license to such infringements.

Marsy’s Law, rather, applies to pretrial rights already given to victims. Tanck again said the law elevates such rights to the constitutional level, allowing victims to deny requests for personal records or information that is not a part of an investigation.

“(This) prevents phishing expeditions, while still allowing the defense attorney to pull anything that was part of the criminal investigation, as well as allowing a judge to compel a victim to produce something if it could be exculpatory,” Tanck said.

Ten states have enacted a version of Marsy’s Law, named for Marsalee “Marsy” Nicholas, a California woman who was killed by her ex-boyfriend in 1983 after he was released from jail without her being notified.

The Associated Press’ Todd Richmond also contributed to this report.