It takes a certain type of person to oppose a law named after a young woman murdered in her prime that purports to protect victims' rights. This is doubly true when the primary force behind that law is a grieving brother who also happens to be a billionaire.
In 2018, voters in Florida, Nevada, Oklahoma, Kentucky, North Carolina, and Georgia passed versions of Marsy's Law, joining five states that already had such measures on the books. The Marsy's Law for All campaign says these constitutional amendments "give victims of crime equal rights that are already afforded to the accused and convicted," such as the right to be notified about and to speak at court proceedings.
A motley crew of critics sees things differently. They range from the usual suspects, such as defense attorneys and state affiliates of the American Civil Liberties Union (ACLU), to former and current prosecutors, law enforcement officers, and even Florida's League of Women Voters.
Marsy's Law is vaguely written, which is part of the problem. But opponents mostly agree the real issue is that it infringes on the constitutional rights of the accused by making it harder for them to defend themselves. Critics also argue that the more defensible parts of Marsy's Law are redundant: About two-thirds of states have already enshrined some form of victims' rights in their constitutions, and the rest have victims' rights statutes.
The Marsy's Law movement, in other words—well-intentioned though it may be—is an unnecessary and emotionally manipulative assault on due process and the presumption of innocence.
Sympathy for the Accused
Marsy's Law is the crusade of Henry T. Nicholas III, founder and former chief executive of Broadcom, a Fortune 500 technology company. Nicholas, who is chairman of Marsy's Law for All, founded the national organization in 2009 in response to a personal tragedy.
In 1983, Nicholas' sister, Marsalee, was murdered by her ex-boyfriend, Kerry Conley. Unbeknownst to the Nicholas family, Conley made bail. They found out in a terrible way. "After the funeral service, we were driving home and stopped at a market so my mother could just run in and get a loaf of bread," Nicholas told the Los Angeles Times in 2015. "And there in the checkout line was my sister's murderer, glowering at her."
Nicholas won his first victory for victims' rights in his home state of California in 2008, when 54 percent of voters approved the Marsy's Law ballot initiative, adding 17 enforceable victims' rights to the state constitution. He spent $4.8 million on the campaign. After that victory, Nicholas started Marsy's Law for All, according to its website, "to amend state constitutions that don't offer protections to crime victims and, eventually, the U.S. Constitution."
Since 2014, voters in 11 more states have added some version of Marsy's Law to their constitutions, although there have also been defeats. Legislators in four states—Maine, Idaho, New Hampshire, and Iowa—decided against putting the measure on the ballot last year. While the people of Montana passed it in November 2016, the state Supreme Court ruled it unconstitutional a year later because it combined multiple amendments in one initiative. In 2018, a Kentucky circuit judge also blocked certification of the ballot measure because of the way the question was worded. As in California, the Marshall Project reports, Nicholas "almost single-handedly" financed all these efforts.
Nicholas, who has himself been accused of various crimes, is not the ideal poster boy for a movement dedicated to putting victims' rights on par with the due process rights of the accused. Some of the allegations against him involve activities that arguably shouldn't be crimes at all precisely because they are victimless, such as using copious recreational drugs and hiring prostitutes for himself and his associates. In August, he was arrested in Las Vegas on suspicion of narcotic trafficking after police found heroin, cocaine, meth, and MDMA in his suite at the Encore at Wynn hotel. (Despite that arrest, Clark County District Attorney Steve Wolfson—who campaigned for Marsy's Law in Nevada—has yet to charge Nicholas* for drug trafficking and has requested four continuances, or postponements, in the case.)
There are also more serious allegations, some of them involving violence. In 2008, federal prosecutors indicted Nicholas for securities fraud and drug trafficking, describing an unstable man who spiked business clients' drinks with MDMA without their knowledge and routinely threatened the lives of his employees. In 2010, however, the judge in Nicholas' case threw out the charges for securities fraud due to prosecutorial misconduct and then dismissed the drug charges.
But that wasn't the first time people had accused Nicholas of threatening to kill them. A contractor who had built a "man cave" under Nicholas' former mansion alleged in a 2002 lawsuit that the billionaire had used death threats to pressure him and his workers to get the project done faster, while Nicholas' ex-wife said in a lawsuit that he'd told her he could have her "whacked" after she filed for divorce in 2008. In 2016, two ex-girlfriends alleged that Nicholas had abused them, and one obtained a protective order against him after telling a court that he shoved feces into her face and punched her in the head.
Nicholas, who through his organization declined to be interviewed for this article, has denied all wrongdoing, and so far he has not been convicted of anything. Before his latest drug arrest, his personal attorney told the Marshall Project that he's been "smeared by the dredging of old accusations from discredited sources." But if anyone should understand the importance of the presumption of innocence and other constitutional rights of defendants, shouldn't it be an avowedly innocent man with a long history of facing criminal charges?
Presumption of Guilt
One of the biggest problems with Marsy's Law is its expansive definition of victim. According to the Marsy's Law model language, a 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 whom the crime or delinquent act is committed." Victims' rights, therefore, are not restricted to people who suffer violence or even felonies. They extend to misdemeanors too.
Furthermore, a person does not have to experience harm directly to be considered a victim. The definition 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." The definition is so flexible, Brian Gootkin, a sheriff in southwest Montana, told Maine Public Radio in 2017, that even someone who witnesses a crime could qualify.
Under Marsy's Law, rights apply "beginning at the time of…victimization." This is both intuitively appealing and legally problematic: It effectively flips the presumption of innocence to a presumption of guilt.
When the campaign makes its pitch for victims' rights, however, it concentrates on extreme examples. "We can all agree that no rapist should have more rights than the victim," the Marsy's Law for All website declares. "No murderer should be afforded more rights than the victim's family."
This rhetorical approach is deliberate, says Jeanne Hruska, political director at the ACLU of New Hampshire, who helped defeat Marsy's Law before it could get on that state's ballot last year. "People don't think of victims' rights as applying to the person who was the victim of a $10 fraudulent check," she says. "They think of victims as the rape victim, the victim of sexual assault. That's the portrait of the victim that Marsy's Law portrays." In fact, the proposed definition covers "literally any victim of any crime."
A more fundamental problem with Marsy's Law is that victims' rights apply "beginning at the time of…victimization," according to the model language. This is both intuitively appealing and legally problematic: It effectively flips the presumption of innocence to a presumption of guilt.
"Whether or not there has been a victimization and, if there has been, who the perpetrator is, while sometimes apparent, is what our courts exist to determine through the due process of law," state attorney William Cervone and public defender Stacy Scott wrote in The Gainesville Sun last October. Accusers, after all, sometimes spin tall tales of horrific crimes—think of the unfounded 2006 accusations against members of the Duke University lacrosse team and the bogus 2014 Rolling Stone story about a gang rape at the University of Virginia. And even seemingly straightforward crimes can have complicating circumstances—think of the battered wife who eventually fights back and kills her abusive husband in his sleep.
In some states, the laws are also redundant. Florida's constitution already guaranteed victims' rights prior to the 2018 election. That provision included an important caveat that victims' rights could not "interfere with the rights of the accused." Marsy's Law deleted this protection for defendants, prompting the Florida League of Women Voters to oppose the effort, which the group called a "clear violation of the 14th Amendment to the Constitution, which provides due process for all defendants." Nevertheless, on November 6, nearly 62 percent of Florida voters approved Marsy's Law for the state.
I asked University of Utah law professor Paul Cassell, a member of the Marsy's Law National Policy Team, whether granting victims' rights at the beginning of the criminal process subverts the presumption of innocence. "The key is [to] understand that the presumption of innocence is a trial-related right," he replied in an email. "Nothing in Marsy's Law interferes with a defendant's right to trial, where he has the full panoply of rights while attempting to prove his innocence."
University of New Hampshire law professor Albert Scherr, a former ACLU board member, rejects that argument. "Dr. Cassell is wrong," he writes in an email. "The presumption of innocence applies before trial, not just during trial.…The presumption of innocence means that a court cannot make decisions, pre-trial or during trial, based on the defendant's guilt. Legally identifying an individual as a 'victim' for purposes of providing them with protections from the defendant presumes that a crime has occurred and that the defendant has committed it."
Victims' Rights on 'Roids
When they're considered victims under Marsy's Law, accusers wield significant power. Although the measures can vary from one state to another, they generally include a right "to be free from intimidation, harassment and abuse," a right to be notified of and heard in virtually any proceeding involving the crime or the defendant, a right "to confer with the prosecuting attorney," and a right to a speedy trial. Accusers also have a right to privacy, which allows them 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."
These rules alarm many defense attorneys and even some prosecutors. The most common objection is to the victim's right to refuse to cooperate with deposition and discovery requests from the defense. The rationale for that right is that such interactions could aggravate the victim's trauma. But as Howard Finkelstein, the chief public defender for Broward County, Florida, explained in a South Florida Sun Sentinel op-ed last year, depositions often help resolve criminal cases in states that allow them.
"Most cases are resolved by the defendant entering a plea after both the state and the defense assess the strength of the case through depositions," Finkelstein wrote. "Allowing a victim to refuse to give a sworn statement to [the] defense attorney will result in more trials, and victims will have to testify in court in front of a jury and the defendant. Is that less traumatic?"
Seth Miller, executive director of the Innocence Project of Florida, calls the right of victims to subvert the discovery process "ill-advised." Most defendants in the criminal justice system already face poor odds, since they are usually represented by overworked and underpaid public defenders; allowing victims to opt out of the discovery process, Miller says, would only make it "harder for defendants to get a fair shake, particularly in cases where it's 'he said, she said,' or really any case that relies heavily on victims' testimony." Miller worries that without the discovery option, more innocent defendants will agree to plea deals rather than go to trial.
Defendants, after all, have a constitutional right to exculpatory evidence, which could be held by the so-called victim in the case. "By enabling victims to refuse discovery requests for potentially exculpatory evidence," Hruska says, "victims' rights would undo defendants' rights."
Back in 2008, the ACLU of Northern California raised similar concerns when the very first Marsy's Law was proposed in that state. "Medical and psychological records are often critical to the case," the group's memo says. "If the defendant is charged with inflicting physical harm, the defense must be permitted to inspect all relevant medical records, including the statements the victim made to medical professional[s] at the time of treatment which may relate to cause of injury. Likewise, psychological records can be critical to assessing the credibility and bias of the victim."
It's important to recognize, according to Hruska, that courts are already protective of victims and work to ensure defense teams don't harass them during the criminal justice process. "Defense counsels can't just demand anything from victims during discovery," she says. "Courts censor discovery requests heavily already." Marsy's Law removes that court discretion and gives control over the discovery process to the alleged victim, who could be lying or mistaken about what occurred, to the detriment of the defendant.
The problems with Marsy's Law aren't confined to victims refusing depositions and discovery requests. In South Dakota, which passed Marsy's Law via ballot initiative in 2016, Minnehaha County Public Defender Traci Smith told the Argus Leader that bond hearings and plea deals have been delayed at the prosecutor's request so that victims can be notified. Victim notification, in other words, can keep people who have not been convicted of any crime in jail longer than they otherwise would be, depriving them of their liberty and throwing their lives into disarray.
In another case, Smith told the newspaper, the state attorney general's office sent one of her paralegals a cease-and-desist letter for contacting the victim, saying it was tantamount to harassment. The client's alleged crime: passing a bad check. "Our paralegals are scared now," Smith said.
These laws don't only weaken the presumption of innocence; they could also contaminate criminal trials and undermine the independence of prosecutors.
In 2017, when the Marsy's Law campaign came to Idaho (where it was ultimately defeated), Deputy Attorney General Paul Panther was troubled by the proposed amendment's expansion of the victim's "right to be heard." Idaho's constitution already gave victims such a right when defendants plead guilty and when they are sentenced, incarcerated, or released. Marsy's Law would have extended that right to "all criminal justice proceedings," which would include trials. This right to be heard is never properly defined in the law's language, and critics worry it grants victims the right to testify at trial, whether the prosecutor wants them to or not.
"To grant a third party an independent right to be heard at the trial phase infringes on the prosecutor's role and effectively allows a third party (or perhaps a fourth or fifth, depending on the number of victims) to intervene in a criminal proceeding," Panther wrote in response to questions from a state legislator. "This has the potential to complicate criminal cases, confuse juries, prejudice the defendant's right to a fair trial and undermine a prosecutor's ability to present evidence in the manner he or she believes is most effective."
Panther's concerns did not end there. He noted that Marsy's Law would give crime victims, their attorneys, and even prosecutors the right to seek the "prompt enforcement" of victims' rights—without spelling out exactly what that means. It could, Panther wrote, give third parties the right to intervene in a criminal proceeding where now there are only two parties: the state and the defendant. If so, the prosecutor in some situations could become the victim's attorney, which would "compromise the prosecutor's independent judgment and objectivity" and his "duty above all to seek justice."
Expanding the "right to be heard," one deputy attorney general wrote, "has the potential to…prejudice the defendant's right to a fair trial and undermine a prosecutor's ability to present evidence in the manner he or she believes is most effective."
In other circumstances, Panther said, a victim could allege that the prosecution had violated his rights by, for example, not conferring with him. "Thus, the victim could be pitted against the prosecutor in either the criminal case or a contemporaneous civil proceeding," he wrote. "This could place prosecutors in a position of having a conflict of interest, force them to withdraw from a case and result in appointment of a special prosecutor, after which the same cycle could be repeated if the same complaints arise again."
It's unclear what constitutes prompt enforcement of a victim's right. For instance, if a victim didn't have a "reasonable and timely" chance to read the pre-sentence report, which is an investigation into the personal history of the convicted to determine whether he deserves a lesser or harsher sentence, Panther worried the victim could force a sentencing postponement or even a resentencing. This, he said, could only "complicate and prolong criminal proceedings, rather than aid in a timely disposition of those proceedings."
Scott Greenfield, a New York defense attorney and legal blogger at Simple Justice, agrees that guaranteeing victims a role in criminal proceedings is a terrible idea. "The victim may demand harshness that the government, who represents societal interests, may find unwarranted," he says. "The victim may demand a trial, at the government's expense, that can't be won, whether because the evidence isn't there or [because] the victim isn't as much a victim as she feels."
The ACLU's Hruska believes Marsy's Law also could empower victims and their attorneys to defy subpoenas for testimony at trial. That would violate the Sixth Amendment, which guarantees a defendant's right "to be confronted with the witnesses against him."
Marsy's Law, in short, could turn criminal proceedings into kangaroo courts, undermining the structure of a criminal justice system that requires the government to prove its case before it deprives someone of life, liberty, or property. "It's like tying the defendant's hands behind his back and then telling him to fight," Greenfield says. "It's not a fair fight now, but Marsy's Law would turn it into a slaughter."
The most disturbing consequence of Marsy's Law could come into play after someone is convicted. By tipping the scales of justice overwhelmingly in favor of accusers, Marsy's Law increases the likelihood that innocent people will be convicted or plead guilty. At that point, Marsy's Law imposes arbitrary time constraints on appeals, making it much harder for defendants to challenge wrongful convictions.
Under the version of Marsy's Law passed in Florida last year, people convicted of noncapital crimes have only two years to complete all appeals, while those on death row have five years. The new limits are based on the victim's right to proceedings free of unnecessary delays. Under prior law, by contrast, there were limits on how long it could take to file a post-conviction action, Miller said, but there were no limitations on how long the post-convictions could last once initiated.
"For all of my clients, we got involved in the case one or two decades later," says the Innocence Project's Miller, whose organization has gotten 18 people in Florida released from prison. "Is this going to be used by victims of crimes to prevent us from pressing post-conviction motions based on newly discovered evidence of innocence, because it's outside an arbitrary time frame set out in this new constitutional provision?"
Miller also worries that Marsy's Law will make it harder for attorneys to investigate their clients' claims of innocence. While victims have always been free to say no when defense attorneys or investigators seek to informally interview them, Marsy's Law might allow accusers to get protective orders preventing attorneys from contacting them at all. Miller thinks Marsy's Law might even empower victims to quash subpoenas to appear at post-conviction evidentiary hearings, which could deprive these proceedings of critical, even exonerating, evidence in cases where the state's main witness is the alleged victim. "I have no idea how this is going to play out," he says.
The appeal deadlines, combined with other provisions of Marsy's Law, could lead to more innocent people rotting in jail or even being executed. In Florida, the latter threat is more than theoretical. In November, the state dropped all charges against Clemente Aguirre-Jarquin, who had sat on death row for more than 12 years after he was wrongly convicted of a double murder. He was the 28th person on death row in Florida to be exonerated. If the amendment that passed in November had already been on the books, it may have stopped Aguirre-Jarquin's appeals after five years.
Marsy's Law has "the potential of preventing organizations like mine from getting to the truth in a case," Miller says. "Our only goal is to find out the truth wherever it takes us, and if it demonstrates that the client is innocent, we want to vindicate that person and get them out. And we don't want unnecessary and arbitrary barriers to doing that."
Who Could Oppose Victims' Rights?
In this era of "believe all survivors," Hruska is spooked. She worries the Marsy's Law campaign could succeed in amending the U.S. Constitution because it's too easy to demonize anyone who questions or opposes victims' rights, particularly male politicians. Hruska fears congressmen, especially progressive congressmen, will "bend over backward" to prove that are not enemies of the #MeToo movement.
"Politicians are going to say, 'I politically cannot afford to be seen opposing victims' rights because I will be labeled as anti-victim, anti-woman, pro-perpetrator,'" Hruska says. "And the only argument that will be made is an emotional one."
Greenfield, the legal blogger, argues that Marsy's Law weaponizes people's good intentions. "We're being played by the use of empathy as a substitute for serious scrutiny of the underlying issues," he says. "'Empathy' cuts off any challenge at the knees."
The Marsy's Law for All campaign isn't stopping anytime soon. A version of Marsy's Law that's supported by Democratic Pennsylvania Gov. Tom Wolf might make it onto that state's ballot this year as a constitutional amendment. As the campaign moves forward, remember that the organization's ultimate goal is enshrining "victims' rights" in the U.S. Constitution, which would fundamentally alter two historic miracles of Anglo-American law: the presumption of innocence and the right to due process. If that happens, an already criminally unjust system will only get worse.
*UPDATE: Authorities in Nevada filed felony drug charges against Nicholas just after this issue went to print in February.
Photo Credit: Marco Melgrati