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.

http://tinyurl.com/marsyslaw

[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!