Guest Column from North Dakota: What’s Wrong with Marsy’s Law (Part 1)

Jason Glodt, owner of Marsy’s Law for South Dakota LLC and prime sponsor of Amendment S on South Dakota’s November, has been kind enough to provide lengthy, detailed, and generally civil responses to our questions about his seemingly redundant constitutional amendment.

California billionaire Henry Nicholas is paying folks in North Dakota to circulate an identical constitutional amendment currently circulating for their ballot. North Dakota blogger Chad Nodland of North Decoder fame takes a dim view of Marsy’s Law. In the first of two essays on the amendment, Nodland—who practices law—explains how this law could make it easier for false accusers to put innocent defendants behind bars. With Nodland’s permission, I reprint in full:

What’s Wrong With Marsy’s Law? (Volume One)

If Marsy’s Law passes, innocent people are going to be convicted of serious felony and misdemeanor crimes. That’s one of the things that’s wrong with Marsy’s Law. But that’s just the start.

There. I said it.

Now, let’s back up for those of you who don’t know what I’m talking about.

Right now and since the middle of 2015, a California billionaire has been funding an effort to put a constitutional measure on North Dakota’s ballot in November of 2016. By the end of last year it looked like the billionaire had already invested about $420,000 in his effort, and he is sure to spend more. Besides hiring out-of-state consultants (like Mitt Romney’s and the RNC’s former press secretary) and in-state spokespeople (like the NDGOP’s National Committeeman Shane Goettle of Odney Advertising, and Marsha Lembke), the California billionaire has arranged for (paid?) signature gatherers around the state and they are compiling signatures at places like the recent Democratic and Republican political conventions, shopping malls and elsewhere.

Before I first saw the text of the Marsy’s Law measure I was told it was a “victim rights” measure. That seemed like a compelling idea. But then I read the language in the proposed measure, and it raised several seriously scary red flags. But, still, before forming my final opinion about it, I wanted to make sure my initial reaction wasn’t way off base or misguided. (It’s called “critical thinking”; look it up.) So I reached out to others to find out what they thought. I talked to a couple of the well-intentioned people who support the measure – including spending over an hour on the phone with a person I respect who is one of the measure’s sponsors. I heard their perspectives and then asked questions about problems with the measure. Though that was a month and a half ago, I still haven’t gotten any answers to any of my concerns.

I also reached out to a variety of people and groups that I learned were or suspected would be interested in the measure. I’ve spoken to some prosecutors, criminal defense lawyers and representatives of a couple other advocacy groups familiar with the proposed amendment to our state’s constitution. Every person I’ve talked to agreed there are or may be reasons to be concerned about the measure. I’ve done other research on this, too, and nothing has diminished my concerns about dangerous problems in the California billionaire’s proposed constitutional amendment for North Dakota will create.

The proposed constitutional amendment is being called “Marsy’s Law” because Marsy was the name of the California billionaire’s sister; a victim of a terrible crime. While we all can and should feel sympathy for the California billionaire and other victims’ family members, we should not let that sympathy cloud our reasoned consideration of something as important as a constitutional amendment. If you read the measure and spend a little time thinking critically about its ramifications you will recognize that it is a wolf in sheep’s clothing.

Today I’m going to start by writing about just one of the many serious, frightening problems with Marsy’s Law. I’ll try to explain the problem by telling you about a real-life case here I worked on in Bismarck a couple years ago. As there may be people out there who are familiar with this case, I asked my client’s permission to use it as an example of where Marsy’s Law would have led to an injustice and he gave me permission to talk about his case. There’s a recording of the trial so if anybody wanted to cross check what I’m talking about, they certainly could. But this story is just one example that represents a huge problem that is going to arise in countless future cases if Marsy’s Law passes.

I’m a lawyer and my client Jerry is a good guy who has worked hard his whole life and is at an age where he should be thinking about retiring. He moved back to rural North Dakota because his elderly father had health issues and needed someone to help care for him and the family farm. The setting for the story of how Jerry became an accused person in a criminal case is a consultation room in a Bismarck hospital. A doctor had just left the small room after discussing Jerry’s father’s condition with Jerry and his brothers and their spouses. For a variety of reasons, the brothers’ relationship have been strained for years, and now the exchange between two of them heated to the point of shouting.

During the argument, Jerry stood up while his seated brother raised his voice at him. Jerry responded in kind. As the heated verbal argument continued, Jerry felt someone grab his right arm from behind him, but he didn’t know who it was. To shake off the unwanted grab, Jerry swung his right arm up and backwards and unintentionally tagged the nose of the unseen sister-in-law who had grabbed him. She quickly put her hands to her face and said, “You broke my nose!” Jerry turns, recognized this wasn’t a situation he wanted to be in, and so he left. His sister-in-law went to the Emergency Room, called the police and got x-rays of her face. The radiologist who reviewed the x-rays wrote up a report that said, “Facial bones negative. No definite fracture identified.” (Defendant’s Exhibit 1)

The police showed up, conducted an investigation, collected the woman’s medical records, forwarded their investigative file to the prosecutor’s office, and Jerry was charged with felony aggravated assault. The sister-in-law insisted her nose had been broken. The theory of the crime alleged was that Jerry had “willfully caused serious bodily injury to another human being.” The “serious bodily injury” alleged in the criminal Complaint to make it “aggravated” (or a felony) was “a broken bone” that was presumably based upon the woman’s excited utterance, “You broke my nose!”

Marsy’s Law, if enacted, would give crime victims this constitutional right to “prevent disclosure” of information the Defendant needs to defend against criminal charges. Here’s the relevant new constitutional right created by Marsy’s Law:

“The right to prevent the disclosure of information or records [ ] which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records.”

Current law (and some would argue the state and federal constitutions) would require disclosure of the radiologist’s report because it is “exculpatory evidence” that tends to prove Jerry’s innocence. But at the same time, most people would agree that medical records are “confidential or privileged information.” They are protected by HIPAA laws and other various privacy protections. In this fact pattern, if Marsy’s Law had been in effect, the prosecutor would have asked permission to turn over the radiology report and other medical records to Jerry and the accuser could have prevented the release because those records are “confidential or privileged information about the victim.” If the prosecutor released them accidentally or on purpose, without consent, the County could be sued for violating Jerry’s sister-in-law’s state constitutional rights and would likely be ordered to pay damages. The County might also have to pay her attorney fees. .

At the trial in Jerry’s case, the evidence of “a broken bone” is witnesses’ statements about the accuser’s excited utterance, “you broke my nose” and her claim that her nose was broken, though it wasn’t.

Operating under our current law, the judge dismissed the criminal case at trial because the prosecutor was unable to present any competent evidence of the alleged broken bone. The only evidence relating to broken bones was the accuser’s claim her nose was broken, and the radiology report saying it wasn’t. Under Marsy’s Law (unless some or all of Marsy’s Law is declared unconstitutional), a jury convicts Jerry of a felony, the Judge possibly fines him and sentences him to time in prison.

This “refuse disclosure” right is just one of about 20 new constitutional rights Marsy’s Law would give to victims. Some of those 20 rights are already written into North Dakota law, and Marsy’s Law would only elevate those rights to a constitutional level, along with all the new rights, trumping the rights of people who have been falsely charged of a crime, or overcharged. But several of the new rights created by the California billionaire’s proposal – including the “refuse disclosure” right – will make our criminal justice system more likely to convict people who should not be convicted and make it harder for innocent people to prove their innocence.

Marsy’s Law’s provisions were written by someone unfamiliar with the way North Dakota’s courts work. It was written by someone with little or no practical experience with North Dakota’s judicial system and our current law. I’ll write about more of the problems with Marsy’s Law later, but I’d ask you to chew on this one big problem for now. Think about other contexts where these types of problem would come up. Imagine, for example, a victim of domestic violence who changes her mind and doesn’t want the injury photos, x-rays taken during the emergency room visit, or testimony by her treating physician to be used against her abuser. You don’t have to be a law professor to imagine some of the negative implications of this one provision of Marsy’s Law. Some of the other problems are arguably worse than what would have happened to Jerry, but the practical impacts of this one provision are pretty bad.

As I have time, I’m going to try to address some of the other regrettable impacts you should expect to see if Marsy’s Law gets adopted in North Dakota.

Stay tuned.

To read the petition and the language of Marsy’s Law, click the link below.

[Chad Nodland, “What’s Wrong with Marsy’s Law, Volume One,” North Decoder via Facebook, 2016.04.12]

Nodland reminds us that we should be careful whom we call “victims“, lest we foul the presumption of innocence that is fundamental to our criminal justice system.

You can read Nodland’s Part 2 on Marsy’s Law on Facebook; I’ll reprint that second essay in full here… after we’ve had time to dissect this first essay!

10 Responses to Guest Column from North Dakota: What’s Wrong with Marsy’s Law (Part 1)

  1. Darin Larson

    The US Constitution trumps a state constitutional provision and therefore to the extent that Marsy’s law prohibits the disclosure of exculpatory evidence it would be deemed unconstitutional. See Brady v. Maryland.

    “Per the Brady v. Maryland decision, prosecutors have a duty to disclose exculpatory evidence even if not requested to do so. While the prosecution is not required to search for exculpatory evidence and must disclose only the evidence in its possession, custody, or control, the prosecution’s duty is to disclose all information known to any member of its team, e.g., police, investigators, crime labs, et cetera. In Brady v. Maryland, the U.S. Supreme Court held that such a requirement follows from constitutional due process and is consistent with the prosecutor’s duty to seek justice.[3]” From Wikipedia, Exculpatory Evidence

  2. Darin Larson

    “According to the Supremacy Clause (Article VI, clause 2) of the United States Constitution,

    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” From Wikipedia, Federal Preemption.

  3. Chad Nodland

    If I’m tracking Darin’s argument, people with the resources to fight the many unconstitutional parts of Marsy’s Law will have to do so on a piece-by-piece basis, eventually — over many years — leaving a state constitutional mandate that complies with the federal constitution. Until those provisions are declared unconstitutional by the Supreme Court, cops, prosecutors, jailers, etc., are all bound to follow the state constitutional provisions in Marsy’s Law.

    (For the record, the courts in California have started the process of piecing out unconstitutional parts of their Marsy’s Law, but it’s not an easy, cheap or fast thing to do.)

    That said — and this is going to sound like a crazy, insane, North Dakota idea — but why didn’t the people who drafted Marsy’s Law draft a CONSTITUTIONAL law? Why didn’t they call up South Dakota’s (or North Dakota’s) prosecutors’ associations and criminal defense lawyers’ associations and ask for input AND (importantly) listen to their concerns? Why are prosecutors and defense lawyers almost universally against this law?

    As the petitions are being circulated in North Dakota, the circulators are using a script full of lies to advocate for it. For example, they’re telling people “this is just to give notice to victims of violent crimes when their assailants are going to be released from prison.” That’s just not true. It may be one of the 20 things it does, but it’s not all it does. They’re also telling people, “We’re aware there some problems with the language in the measure, but we’re looking at making some changes.” I don’t know how it works in South Dakota, but I can tell you this is not possible in North Dakota. You can’t go out and circulate a petition, get thousands of signatures, and then amend your proposal.

    So two questions for today: (1) why not propose something that’s not full of unconstitutional stuff? and (2) why do you have to lie to people to get them to support your measure?

  4. bearcreekbat

    Nodland’s observation “Marsy’s Law’s provisions were written by someone unfamiliar with the way North Dakota’s courts work. It was written by someone with little or no practical experience with North Dakota’s judicial system and our current law” seems equally applicable to the South Dakota version.

    When I pointed out the various statutory rights of alleged “victims” in SD, Mr. Glodt responded politely with several attempts at seemingly dissembling or denying the statutory protections. This suggests that the authors of Marsy’s law amendment here in SD did not review our statutes nor attempt to learn anything about how our judicial system functions, just as in ND, prior to submitting their peculiar SD version of Marsy’s law.

  5. Bear, you’ve gotten me thinking that I need to do a separate post comparing Amendment S to the existing Crime Victims Act in SDCL 23A-28C.

  6. bearcreekbat

    Such a post should be very helpful to your readers, although it might spawn arguments from Mr.Glodt that our statutes do not mean what they say.

  7. glodt told me he was going to the SD Bar Assoc. to get a response. crickets? do lobbyist/lawyers lobby because practicing law is too hard?

  8. i’m not so sure nodland is a lawyer either. (by that I mean I have always wodered if prosecutors are really very good lawyers as law enforcement largely serves the case up to them, ready to go with most legal questions worked out for his/her highness. they may not do as much work, more like TV “lawyers” who glamorize the arduous work that can be required to win a complex, or many other cases.)

    anyway, nodland’s broken nose/HIPPA protected records situation has me wondering if it is really that simple. the law is rarely simple.

  9. Chad Nodland

    Last time I checked I was still a lawyer. And one thing I didn’t mention in my first rant is that I also represent crime victims in civil cases. I have multiple cases where I’m representing crime victims right now. It’s not like I only do criminal defense work or have never been a crime victim myself and can’t see things from the perspective of crime victims.

    My point with the aggravated assault trial I did a 18 months ago (or so) really wasn’t that medical records will be withheld from people accused of crimes under Marsy’s Law (though they undoubtedly will). I was hoping to convey that the constitutional language obviously wasn’t thought through by intelligent people with experience in the trenches, on either side. There will be many unintended consequences of Marsy’s Law, including the one or two examples I gave.

    But I keep coming back to fairly typical domestic violence situations. It’s pretty normal for a victim to change her mind a day or two after her boyfriend/spouse is arrested, wanting charges dismissed. In North Dakota, once the case is charged out, victims of domestic violence are usually unable to stop the state from prosecuting the abuser. The whole idea of criminal law is that it’s not victim vs. accuser; it’s the state (i.e. the people) vs. the accuser. The victim is just a witness. And witnesses aren’t supposed to have control over the search for truth that’s supposed to happen in court cases.

    Under current law, domestic violence victims, specifically, can’t do anything to stop the prosecution because the cops have already collected all the evidence they need from witnesses and the emergency room. But if Marsy’s Law passes, it will empower victims to have the charges dismissed because in a lot of cases there won’t be enough evidence to continue with the prosecution. Even if there still is enough evidence, as a criminal defense lawyer I can promise you that I will use the fact the state has failed to disclose the medical records to my client’s advantage. I can even argue to the jury that the state’s failure to turn over the medical records has to be interpreted by the jury as a sign the records proved my client’s innocence. Good luck getting a conviction there. So now Marsy’s Law empowers wife beaters to get away with it, get back with their victim/significant other, and restart the cycle. Congratulations, California billionaire with a massive creepy basement lair filled with drugs and prostitutes. (Goggle it.) You win.

    I’m amazed people who claim to be advocates for victims of domestic violence actually signed on as sponsors of the measure in North Dakota. Either they don’t realize what they’ve done, or they really don’t care about victims of domestic violence. Either way it’s bad.

  10. State vs. accuser—that sounds like a key point. While we feel for victims, and while victims suffer unique, direct harms from the criminal’s action, the justice system has to keep some separation between itself and the victims (alleged victims, accusers) to investigate and prosecute fairly.

    And that’s a strong point about domestic abuse victims. Let’s see if victims advocates in South Dakota see risk in that angle of Amendment S.