The Role Of Victims In Court

Andrew Sullivan has an interesting post today on his blog, The Dish, linking to two articles exploring the role of victims in criminal proceedings. 

One article, by Paul Cassell, discusses moving away from the traditional two-sided model, “State v. Defendant,” to a three-sided model in which victims enforce their own rights (for example, to restitution or compensation) alongside prosecutors acting on behalf of the state.  Cassell argues that “[t]his change is long overdue, as crime victims have their own independent concerns in the process that ought to be recognized.”

Responding to pushback against that argument by defense attorneys, Cassell explains:

I have also heard defense attorneys argue against victim participation by claiming that this is ganging up on the defendant — double counting the prosecution’s view by adding in the victim’s view.  Here again, that’s not quite right.  While victims often are aligned with prosecutors, other times they may align with defense attorneys.  Victims’ interests are not necessarily the same as prosecutors’ interests.  Indeed, restitution may be an area where victims and defendants could make common cause.  While prosecutors focus on long prison terms, victims are often worried about receiving compensation for their injuries.  Victims might prefer, for example, a sentence under which the defendant is placed on work release and can make payments towards restitution instead of one that simply locks him up and throws away the key.

In a somewhat related article in The Atlantic, Andrew Cohen discusses a case in which a murder victim’s family is at odds with a prosecutor’s decision to seek the death penalty:

The last time [Edward] Montour faced trial for [Eric] Autobee’s death, the victim’s family supported the death penalty as an option. Not this time. This time, having educated themselves about capital punishment, and better understanding the nature of Montour’s mental illness at the time of Eric’s death, the Autobees have been vocally, stridently, ceaselessly against the imposition of death in this case. Earlier this month, for example, as potential jurors in the Montour case were lined up outside the courthouse waiting to learn about the case for which they were summoned, the Autobees picketed the line and pleaded with Brauchler to spare their son’s killer.

Episodes like this — and the media attention they inevitably generated — prompted [George] Brauchler, the prosecutor in the Montour case, to remove the family  from his preliminary list of witnesses to be called during the sentencing of the case. And that removal, in turn, has prompted Montour’s attorneys to ask the trial judge in the case to allow the Autobees to testify during sentencing. That prompted an aggressive response from Brauchler, arguing that Colorado’s victims’ rights laws don’t apply to “mitigating” factors during sentencing but only to “aggravating factors.” And that is where we stand today.


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