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Judge Zell: Marsy’s Law Doesn’t Exempt Alleged Victims from Subpoena and Discovery

Angela Kennecke gives us two examples of Marsy’s Law not living up to its promises to protect victims’ rights in court. KELO-TV’s investigative reporter talks to one domestic abuse victim who was not notified when her abuser was released from prison. She also talks to a rape victim who says Judge Bradley Zell is violating her rights by approving her accused rapist’s request to review her counseling records to challenge the accuser’s credibility:

According to Marsy’s Law, a victim has “the right to prevent the disclosure to the public, the defendant or anyone acting on the defendant’s behalf, of information or records…. which could disclose confidential or privileged information about the victim.”

However, Judge Zell said in court that Sara’s counseling records were not privileged because she had talked to other people. Judge Zell said, ” When the person starts communicating with their parents or their friends or other people that are outside what is deemed to be privileged, it’s no longer privileged”  [Angela Kennecke, “Voiceless Victims,” KELO-TV, 2021.09.27].

Kennecke notes the parallel in this case between the accused rapist’s request and killer Attorney General Jason Ravnsborg’s rejected request for the medical records of Joe Boever the man he killed while driving distracted. Ravnsborg’s victim’s widow invoked Marsy’s Law to argue against the release of those records, but that grave case as well the rape case Kennecke cites raised grave questions about whether victims’ rights can supersede defendants’ rights to due process. Ravnsborg’s judge made no comment about Marsy’s Law when he ruled that Boever’s medical records were not relevant to a hearing on three misdemeanor traffic violations, but Judge Zell addresses the due process question head on:

Judge Zell said in court, “People don’t realize this just because you’re an alleged victim doesn’t mean you are not subject of a subpoena and to be subject to deposition. You are. You can talk to the alleged victim and subpoena them and compel discovery.”

“That is the exact opposite of what Marsy’s Law says,” [lawyer Gina] Rogers said.

According to Marsy’s Law, the victim has “The right, upon request, 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 [Kennecke, 2021.09.27].

That is the problem: Marsy’s Law says the exact opposite of what the United States Constitution says about due process: if you accuse me of a crime, I have a right to face you in court. I have a right to hear you accuse me under oath and ask you questions to save my bacon.

And note Judge Zell’s use of the term “alleged victim.” Certain rights, like a right to be notified when a convict is released from prison, may accrue to a person whom a court has found really is a victim of a proven crime by a convicted defendant, but why should the law grant special rights to a person whose victimhood has not yet been established?

The state may not be doing a good job of enforcing Marsy’s Law, but Marsy’s Law itself is legally problematic.

One Comment

  1. Porter Lansing 2021-09-28 13:24

    Imagine what investigative disclosure Giuliani and Trump could shield themselves from.

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