• Tag Archives victim rights
  • Mickelson Signals Effort to Repeal Crime Victims Bill of Rights

    Speaker of the House G. Mark Mickelson (R-13/Sioux Falls) says he wants the Legislature to offer voters a chance to repeal the crime victims bill of rights they passed last November:

    Speaker Mickelson says the voter approved victims’ rights constitutional amendment is costing counties an additional $5 million statewide.

    Mickelson says there are some good elements in Marsy’s Law, but those provisions don’t belong in the constitution.

    “Some of them were already in state statute. Almost everyone would agree that the kinds of proposals that were in Marsy’s Law don’t belong in our constitution,” Mickelson says. “Our constitution is pretty sacred. It’s supposed to provide some overarching principles, and then we implement those principles with state statutes.”

    Mickelson says once those principles are in state statute, then he’d like to see amendment removed from the constitution [Lee Strubinger, “Speaker Mickelson Wants Marsy’s Law out of Constitution,” SDPB Radio, 2017.10.10].

    It’s nice to see Speaker Mickelson adopting arguments I offered against Marsy’s Law in 2015 and 2016. South Dakota already had plenty of statutes protecting victims that did not require costly Constitutional redundancy. As in North Dakota, which also suffered the intrusion of California billionaire Henry T. Nicholas and his vanity bill into its politics, the crime victims bill of rights imposes costly policy specifics into the state constitution, which should focus, as Mickelson says, on broad governing principles.

    Alas, Speaker Mickelson was too busy promoting his vo-tech governance amendment to second my argument and throw his influential voice into the debate against Marsy’s Law during the 2016 election cycle. Thus, he now faces the awkward prospect of trying to repeal yet another voter-approved initiative. At least this time, Mickelson can’t repeal the initiative burr under his saddle with a mere vote of 54 of his Republican friends in the Legislature; unlike Initiated Measure 22, the crime victims amendment stays in effect unless the Legislature puts it on the ballot and gets voters to change their minds and repeal it in the 2018 election.

    Speaker Mickelson has rightly complained about Marsy’s Law as the prime example (and maybe the only really solid example) of how a ballot measure backed solely by out-of-state money leads to laws that aren’t relevant or helpful to South Dakota. Speaker Mickelson’s pre-general campaign finance report for 2016 shows but apparently Mickelson didn’t want to make that argument in 2016, when he accepted $7,100 in contributions from out-of-state PACs to secure his reëlection in District 13:

    Out-of-state PAC contributions to Mickelson for District 13 House, pre-general report, 2016.10.27.
    Out-of-state PAC contributions to Mickelson for District 13 House, pre-general report, 2016.10.27.

    These contributions constitute less than one tenth of the total cash income Mickelson reported as of October 27, 2016. But they still represent one spike in the two-pronged attack Mickelson makes on his own political standing when he attacks the crime victims bill of rights and pushes his unconstitutional initiative to ban out-of-state money from ballot question campaigns. He is right to say Marsy’s Law and Henry T. Nicholas’s campaign mad money are bad for South Dakota. If he gets the Legislature to put a Marsy’s Law repeal on the 2018 ballot, I’ll support that repeal. But he must bear his own indictment for accepting influential out-of-state cash, and he must bear the burden of telling voters—the same voters who reëlected him—that they made a mistake in 2016.



  • Victim Rights Amendment May Block Amber Alerts

    Back to law enforcement: Davison County State’s Attorney Jim Miskimins says the new family-inclusive definition of “victim” may shut down Amber Alerts:

    According to the amendment, a victim is any person who suffers physical, psychological or financial harm as a result of a crime. The definition also includes the victim’s spouse, parent, grandparent, child, sibling, grandchild or guardian.

    While it’s difficult to predict how Marsy’s Law will affect future cases, Miskimins said this definition could affect Amber Alert investigations — in which a child is kidnapped — if the child is taken by a non-custodial parent. Since the child’s grandparents could be considered victims, they may be able to hide information from law enforcement, violating the best interests of the child [Jake Shama, “Marsy’s Law Leaving ‘Unintended Consequences’ on Public Information,” Mitchell Daily Republic, 2016.11.25].

    Once again faced with the unintended consequences of the vanity bill California billionaire Henry T. Nicholas paid him to push, Republican consultant and attorney Jason Glodt insists the language of his amendment isn’t a problem and that the courts can pick through each situation on a case-by-case basis. Surely a reasonable judge could see that a child’s right to safety takes precedence over claims of the parents of a kidnapper and that the police don’t have to contact every parent, grandparent, sibling, guardian, “and any person with a relationship to the victim that is substantially similar to a listed relationship” of the abducted child before issuing an Amber Alert.

    To reach that conclusion, judges will have to sift through the escape clause written into the amendment:

    The granting of these rights to any victim shall ensure the victim has a meaningful role throughout the criminal and juvenile justice systems and may not be construed to deny or disparage other rights possessed by victims [Amendment S, as printed 2015.08.11].

    The language I bold above may save Amber Alerts… if we can establish that abducted children and/or their custodial parents have a constitutional right to an Amber Alert. Unfortunately, I don’t see Amber Alerts authorized in the state Bill of Rights, and I have difficulty believing that a constitutional amendment can subordinate itself to a statutory right—judges test laws against the constitution, not the constitution against laws.

    Funny that our Republican legislators are exerting themselves in court to overturn IM 22 to protect their free lunches but aren’t making any litigious fuss over Amendment S to protect abducted children.



  • Murder Trial Judge: “Victim” Prejudices Jurors; Glodt Amendment Fouls Presumption of Innocence?

    Connor Byron Hanson is on trial for the January murder of Anthony Lee Gabriel of Sioux Falls. But don’t call Gabriel a “victim,” at least not during Hanson’s trial:

    Hanson’s lawyer, Jeff Larson, plans to argue that Gabriel was the aggressor and instigator in the events and that Hanson killed Gabriel in self-defense. Larson argued in a motion this week that calling Gabriel a victim would deprive Hanson of his presumption of innocence and right to a fair trial and would violate his constitutional rights.

    Judge Robin Houwman agreed Thursday, telling prosecutors to avoid the term “victim” and instruct witnesses to refer to Gabriel by his name or as “the deceased.”

    “I believe repeated use of the term (victim) can be prejudicial,” Houwman said [Mark Walker, “Lawyer: Teen Shot Gun in Self-Defense,” that Sioux Falls paper, 2015.12.17].

    Judge Houwman appears to be affirming a point I raised this summer in opposition to Jason Glodt’s proposed crime victims’ bill of rights:

    The Glodt amendment offers certain rights applicable to victims after the perpetrator has been sentenced, and those are mostly fine. But the above rights and some others in the Glodt amendment share a fatal legal flaw. Supporters of the Glodt amendment will say that this proposal is about giving victims rights and respect similar to what the legal system gives to criminals. But in many cases, we’re not talking about rights for criminals; we’re talking about rights for defendants. And as long as we’re talking about defendants, the rights above aren’t being granted to victims; they are being granted to alleged victims, to accusers like Chad Haberto people who in the eyes of the law are not proven victims.

    This overarching argument is exactly the sort of unpleasant legalism that Glodt and his campaigners will use to cudgel their opponents—How dare you suggest these poor families aren’t victims?! But it’s true: defendants get special status because the state is coming down on them. Defendants are innocent until proven guilty; they thus enjoy unique protections against the possible errors and abuses of the state. Just as the state may not oppress defendants until due process leads to a guilty verdict, the state should not be able to favor certain citizens until due process has shown they have been harmed. Alleged victims enjoy protection from harassment and invasions of privacy under existing statutes that apply to all citizens equally [C.A. Heidelberger, “Glodt Amendment for “Victims” Rights Redundant, Unenforceable, Unwise,” Dakota Free Press, 2015.08.11].

    It sounds harsh, but Judge Houwman agrees: the deceased isn’t a crime victim until we’ve proven a crime happened. Judge Houwman’s ruling in the Hanson murder trial supports the argument that Jason Glodt can’t give crime victims rights before we’ve convicted defendants of their crimes.



  • Glodt Amendment for “Victims” Rights Redundant, Unenforceable, Unwise

    SDGOP insider Jason Glodt offers an initiated constitutional amendment to enact California’s “Marsy’s Law” in South Dakota. SDGOP fawner Pat Powers says this “crime victim’s bill of rights” is just great. My skepticism tingles.

    The pro-victim language bracketing this amendment—”Are you ready to get behind and support the victims of crime in South Dakota?”—dares critics to make themselves out to be meanies if they set aside emotion and subject the proposal to rational analysis. But this proposed amendment looks like an unnecessary and unwise tinkering with the state constitution.

    The proposed amendment creates 19 new “rights” for “victims” of crimes or delinquent acts. The full definition of “victim” is “”a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against who the crime or delinquent act is committed. The term also includes any spouse, parent, grandparent, child, sibling, grandchild, or guardian, and any person with a relationship to the victim that is substantially similar to a listed relationship, and includes a lawful representative of a victim who is deceased, incompetent, a minor, or physically or mentally incapacitated. The term does not include the accused or a person whom the court finds would not act in the best interests of a deceased, incompetent, minor, or incapacitated victim.” “Substantially similar” is an interesting phrase: boyfriends? girlfriends? live-in lovers? Frat brothers?

    The first four rights enumerated in Glodt’s amendment are no-brainers, the kinds of protections that every citizen already enjoys under various provisions of law:

    1. The right to due process and to be treated with fairness and respect for the victim’s dignity;

    2. The right to be free from intimidation, harassment and abuse;

    3. The right to be reasonably protected from the accused and any person acting on behalf of the accused;

    4. The right to have the safety and welfare of the victim and the victim’s family considered when setting bail or making release decisions;

    From a conservative perspective, if we already have rights under existing statute, there should be no need to create new statute. Glodt should have the burden of proving that citizens do not currently enjoy these four rights.

    Right #5 is Glodt’s first legal landmine:

    5. The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records;

    This text appears to give crime victims the right to prohibit any journalist from publishing their names, images, addresses, hometowns, employers, or any other identifying information. When Dakota War College accused me in July 2013 of stealing documents, alleged crime victim Chad Haber could have asserted Glodt Right #5 to demand that I remove from my blog any mention of his name or the name and location of his non-profit office. Under Glodt’s familial definition of “victim,” Haber’s wife Annette Bosworth could also have demanded that I scrub my blog of any mention of her name, office location, or schedule of campaign events. Glodt Right #5 becomes a blanket prior restraint right for anyone alleging a crime.

    Glodt Right #5 also creates a bureaucratic nightmare for public officials, reporters, banks, and any other entity that may hold or seek records about crime victims. The amendment language says victims have a right, enforceable in court, to be notified of “any” request for information or records that might identify or locate those victims, not just requests from accused perpetrators or people acting on their behalf. Technically (and we have to read laws technically), the Secretary of State would have to notify “victim” Chad Haber every time I check the public database for his campaign finance reports (dang! still delinquent, more than nine months later!). Victims could demand that reporters notify them every time they ask police, neighbors, or anyone else anything about the victims of an alleged crime. I don’t think such nightmarish intrusions into normal information-gathering activities are Glodt’s intent, but nothing in the language he wants to throw on the ballot prevents such legal snarl-ups.

    Right #6 provides victims an interesting immunity from subpoena:

    6. The right to privacy, which includes the right to refuse an interview, deposition or other discovery request, and to set reasonable conditions on the conduct of any such interaction to which the victim consents;

    South Dakota’s statute on subpoenas for discovery already includes a provision allowing a judge to quash or modify an unreasonable or oppressive subpoena. Do we really want to further deny defendants access to information that could establish their innocence?

    While Right #5 creates trouble for journalists, Right #10 may allow journalists to create trouble back for prosecutors of cases involving crimes against the public:

    10. The right to confer with the attorney for the government;

    Consider the voter bribery conducted by medical cannabis petitioners last weekend. That’s a “offense against the elective franchise.” We’re all victims. Thus, if the state picks up this voter bribery case, all of us participants in the elective franchise will have a right to confer with the Hughes County states attorney or the Attorney General about the conduct of the case. For reporters and bloggers, that’s a dream: if we call the AG for comment and he doesn’t get back to us, we can sue. If the AG refuses to share details of the case with us, we can sue.

    Of course, the SA or the AG might not be able to get back to me because he’d have 500,000 other victims in line waiting to confer.

    Right #12 helps us journalists get information about cases of crimes against the public:

    12. The right to receive a copy of any pre-sentence report or plan of disposition, and any other report or record relevant to the exercise of a victim’s right, except for those portions made confidential by law;

    Apply that right to the Annette Bosworth petition-perjury case (a crime of which all South Dakotans were victims), and wow—we could all see the pre-sentencing reports that Judge Brown received before giving her 500 hours of community service. I hope the AG and circuit courts are ready to set up electronic mailing lists for all the reporters who will take advantage of the services entailed in Glodt’s amendment.

    Right #15 is redundant:

    15. The right to proceedings free from unreasonable delay, and to a prompt and final conclusion of the case and any related post-judgment proceedings;

    The Sixth Amendment already guarantees a “speedy and public trial” for all defendants. Glodt Right #15 would not seem to add any force to that provision.

    The Glodt amendment offers certain rights applicable to victims after the perpetrator has been sentenced, and those are mostly fine. But the above rights and some others in the Glodt amendment share a fatal legal flaw. Supporters of the Glodt amendment will say that this proposal is about giving victims rights and respect similar to what the legal system gives to criminals. But in many cases, we’re not talking about rights for criminals; we’re talking about rights for defendants. And as long as we’re talking about defendants, the rights above aren’t being granted to victims; they are being granted to alleged victims, to accusers like Chad Haber, to people who in the eyes of the law are not proven victims.

    This overarching argument is exactly the sort of unpleasant legalism that Glodt and his campaigners will use to cudgel their opponents—How dare you suggest these poor families aren’t victims?! But it’s true: defendants get special status because the state is coming down on them. Defendants are innocent until proven guilty; they thus enjoy unique protections against the possible errors and abuses of the state. Just as the state may not oppress defendants until due process leads to a guilty verdict, the state should not be able to favor certain citizens until due process has shown they have been harmed. Alleged victims enjoy protection from harassment and invasions of privacy under existing statutes that apply to all citizens equally.

    The Glodt amendment may have noble intentions, and I invite more astute legal readers to explain how those noble intentions may fit with due process. However, on first reading, I find the provisions of the Glodt amendment either redundant, unenforceable, or repugnant to the principle of innocent until proven guilty.