The Volokh Conspiracy

A golden retriever named Rosie recently became the first judicially approved dog allowed in the witness box for the purpose of comforting a witness while she testifies:

Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in….

Now an appeal planned by the defense lawyers is placing Rosie at the heart of a legal debate that will test whether there will be more Rosies in courtrooms in New York and, possibly, other states.

Rosie is a golden retriever therapy dog who specializes in comforting people when they are under stress….

[Defense] lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.

But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”

“There was no way for me to cross-examine the dog,” Mr. Martin added.

My wife and I recently acquired a golden retriever puppy, and we love the breed as much as anyone. Nonetheless, I think there is some merit to the defense lawyers’ concerns. A witness with a cute golden retriever sitting next to her almost always makes a better impression on people than the same witness sans retriever – whether or not she is telling the truth. Every time I walk around the neighborhood with our little Willow, I certainly notice people reacting a lot more favorably than they do when I walk there by myself. You don’t have to be a criminal law expert to recognize that people respond favorably to cute dogs. That’s why they’re such popular pets in the first place.

Does that prove that dogs should be categorically banned from the witness stand? Perhaps not. But it certainly suggests that their presence should be restricted as much as possible and at most limited to cases where there services are absolutely essential, as in the case of seeing-eye dogs, for example.

Yesterday I posted about Fairfax County teacher Sean Lanigan, falsely accused of child molestation. Here’s a bit more:

(1) Lanigan answers Post readers’ questions here. He opines that the accuser’s name should not be published, as she is a troubled 13 year old girl. I was already reconsidering my view on this, and I suppose I ultimately agree with Lanigan that her name shouldn’t be published–in part because I’ve learned that the Post also doesn’t publish the names of minors accused of crimes. [Apparently, however, the accuser hasn't faced even any internal discipline from the county school system. Good thing for her she decided to make a false allegation of sexual abuse instead of, say, bringing a Tylenol from home.]

(2) I have two extended family members (who are part of completely different branches of the family and are unknown to each other) who were falsely accused of molesting their own children and arrested, just so their wives could get an advantage in custody/divorce proceedings (neither was prosecuted, but much damage was done to both men and their children as their wives pursued their respective vendettas). I also know people who suffered serious abuse that was consistently ignored by authority figures. It seems like somehow a lot of energy gets expended on pursuing false accusations, and not enough on getting the bad guys (and gals). I wish there was an obvious solution, but I don’t have one.

(3) Speaking of false accusations against teachers, Hans Bader has been all over a story that hasn’t received nearly attention:

If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like [Lanigan] will end up being fired even if they are acquitted by a jury of any wrongdoing, and may very well be innocent. It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault. According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard. So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.

Most colleges have historically required “clear and convincing” evidence of guilt. This sensible standard requires less absolute certainty about guilt than the “beyond a reasonable doubt” standard used in criminal prosecutions, but more certainty than the mere 51% chance (preponderance) standard demanded by the Education Department. But under pressure from the Education Department, colleges across the country have now abandoned this safeguard against false accusations.

I admit to less certainty than Bader about what the appropriate standard is for accusations of misconduct in the academic context, especially for sexual assault as opposed to “harassment,” the latter of which universities (in part under pressure from DOE) often interpret way too broadly (see relevant discussion in my book, You Can’t Say That!). But I do know that the Department of Education has no business dictating a preponderance of the evidence standard to universities nationwide. Bader provides many links to legal and policy objections to DOE’s new policy.

A Fairfax County gym teacher was falsely accused of molesting a twelve-year old student who had a vendetta against him, and was prosecuted based on the flimsiest of evidence (basically, the word of the student who held a grudge, and her friend, with contrary eyewitness and physical evidence). It took a jury all of forty-seven minutes to acquit him. The Washington Post has the story here.

Two comments: (1) Given the facts related in the Post, this prosecution seems to show, at best, incompetence on the part of Fairfax Commonwealth’s Attorney Raymond F. Morrogh. Unfortunately, it’s rare that any consequences follow from incompetence or even deliberate malfeasance by a prosecutor; (2) The Post declined to publish the accuser’s name because she’s “a minor.” Fiddle-faddle. She was mature enough to hatch a scheme that would send an adult to jail to satisfy a grudge against him. Adult misbehavior should have, if not adult consequences, at least consequences. And how are other adults to protect themselves from her accusations if she’s allowed to maintain anonymity?

UPDATE: The Post has an update to its story. Given the following, Detective Nicole Christian, the lead detective in the case, needs to be investigated and potentially disciplined:

But when others – staff, parents – tried to tell Christian anything she didn’t want to hear, she threatened them with prosecution for obstruction of justice, the staff members and parents said. School district investigator Steve Kerr’s investigative report, written after Lanigan’s acquittal, confirmed those claims, noting that: “Because of the jury’s decision, the detective [Christian] advised that she will not pursue criminal charges against [staff member] or [staff member].”

Wow! Christian also refused to listen when the accuser’s friend and co-accuser tried to recant.

The Post also explains its decision not to print the accuser’s name. I’d find its reasoning far more persuasive if it would also decline to print suspects’ names.

Finally, the update makes Fairfax County prosecutors, especially Christian, look even worse than the original story, and the case even weaker.

The old answer seemed to be “yes,” but in recent years the states have split on the subject. State v. Carlin, decided by the Alaska Supreme Court last Friday, switches Alaska from the “yes” column to the “no” column, partly because of growing concerns about victims’ rights:

While abatement [i.e., erasure of the conviction -EV] is contrary to the victims’ rights under the Alaska Constitution, relying on the presumption of guilt after conviction to leave the conviction intact is contrary to the defendant’s right to appeal. Therefore, we choose the middle path, electing to follow those courts that allow the appeal to continue upon substitution. These courts have provided that either the State or the defendant’s estate may request substitution, allowing another party to be substituted for the defendant. Specifically, we agree with the high courts of Washington and Maryland that the defendant’s estate may substitute in for the deceased appellant.

On Monday, I’ll be in the D.C. Circuit arguing an interesting case concerning a crime victim’s right to restitution in child pornography cases. 

I represent “Amy”, who is the victim depicted in the “Misty” child pornography series — apparently the most widely disseminated series on the web.  She has filed restitution requests of approximately $3,000,000 in cases throughout the country, mostly seeking to recover lost income and psychiatric counseling losses.  District courts have reached differing conclusions about whether Amy is entitled to restitution for that amount and, if so, whether individual defendants are liable for the entire amount or some smaller share.

Several weeks ago, Judge Kessler awarded Amy only $5,000 in restitution.  Under the Crime Victims Rights Act (CVRA), New York attorney James Marsh and I filed a CVRA petition in the D.C. Circuit, asking for full recovery for Amy.  The petition is here, along with responses from the defendant and the Government.

Amy’s petition implicates a procedural issue on which the circuits are split: whether crime victims filing a CVRA petition are entitled to ordinary appellate review or merely deferential mandamus review for clear and indisputable errors.  I’ve written a  law review article taking the position that victims should receive the same sorts of appellate protections that other litigants receive, so I’m looking forward to making my case to the D.C. Circuit on that one.   The issue is how to interpret 18 U.S.C.  3771, which requires a court of appeals to “take up and decide” a mandamus petition filed by victims.   In my view, this language makes clear that Congress intended to replace discretionary mandamus standards with ordinary appellate standards — a view taken by the 2d, 3rd, 9th, and 11th circuits. 

On the substantive restitution issue, the question that has divided district courts is how to interpret 18 U.S.C. 2259, which promises victims of child pornography offenses restitution for the “full amount of the victims losses.”  To my mind, this and other provisions in 2259 guantee Amy a right to restitution award of $3 million from each and every defendant who views her images – as an innocent victim of crime, Amy shouldn’t be required to track down all the multiple offenders around the country to obtain full restitution. 

The CVRA promises crime victims a decision in 72 hours.  Amy has tried to waive that right, but the D.C. Circuit is nonethelss moving at breakneck speed.  Amy’s petition was filed on Wednesday, January 26, and this Monday, January 31, the D.C. Circuit ordered oral argument next Monday, February 6.

  The Denver University Law Review has just published my latest article, entitled “Protecting Crime Victims in Federal Appellate Courts: The Need to Broadly Construe the Crime Victims’ Rights Act’s Mandamus Provisions.”   The article deals with the question of appellate review of denials of assertions of crime victims’ rights by federal district courts.  

  There is a clear “circuit split” among the various circuits as to whether crime victims are entitled to ordinary appellate review in the appellate courts or merely “clear and indisputable error” review that applies in the setting of mandamus petitions.  I argue the crime victims should receive the same sort review as other litigants.  For further information on the argument, the abstract can be found below.

Continue reading ‘A Crime Victim’s Right to Appellate Review?’ »

Yesterday U.S. District Judge Patrick Schiltz of the District of Minnesota issued an interesting order regarding a restitution application in a child pornography case.   In his order, found here, Judge Schiltz chastises the government for failing to pursue restitution for child pornography cases in his district, even though Congress has made restitution mandatory in such cases.  Judge Schiltz wrote:

This Court has recently handled a number of other child-pornography cases in which the United States Probation Office has identified victims who are seeking restitution.  Notwithstanding the strict mandates of § 2259, the government has also declined to pursue restitution in those cases. Given the clear Congressional mandate that those convicted of child pornography offenses pay restitution to their victims, the Court will no longer accept silence from the government when an identified victim of a child-pornography offense seeks restitution.  If the government declines to seek restitution, the government will have to give the Court some explanation for its decision.

The statute that Judge Schiltz cites, found here, directs district courts to order restitution for the “full amount of the victim’s losses.”  In this particular case, a young girl who was raped and had pictures of the crime taken seeks several million dollars in restitution to pay for counseling and other expenses resulting from the crime. 

The victim has sought these damages not only from the defendant convicted in this case in Minnesota but more broadly from every defendant convicted of viewing the images taken of her  against her will.   For instance, she sought such restitution in Texas.  There, a federal district court judge ruled that she could not trace her injuries specifically to the particular defendant convicted in that case.  She sought mandamus relief in the Fifth Circuit, which held in a recent opinion that the district judge was not “clearly and indisputably” wrong in declining to order restitution for the girl.  [Full disclosure: in the district court, I filed a brief on behalf of the National Crime Victims Law Institute supporting the restitution application.] 

The issue of restitution in child pornography cases is an interesting and important one that seems destined to ultimately go to the U.S. Supreme Court.  My own view is that Congress drafted a very broad restitution statute designed to give the maximum possible recovery to victims of child pornography.  Moreover, if any doubt existed about how to interpret this remedial statute, it should be resolved in favor of the innocent victims of these offenses rather than the criminals who continue to cause injury by illegally possessing the pictures in question.

I recently argued that they should to the U.S. Sentencing Commission.   Currently the procedures at sentencing envision the parties arguing the various factors, but not a crime victim.  This approach reflects an outdated way of thinking about criminal procedure — that only the state and the defendant have legitimate interests in the outcome of a criminal case.

In my view, Congress has rejected this approach in passing the Crime Victims Rights Act (CVRA)  in 2004.  The Act promises crime victims that they will be treated with “fairness” through the process and, with regard to sentencing in particular, that they will have the right to be “reasonably heard” at sentencing proceedings.  In passing the CVRA, Congress intended “to afford [victims] due process” in the federal criminal justice system.   Victims are not treated fairly and reasonably heard on sentencing issues unless they are given a chance to speak to federal sentencing guidelines issues.  The federal sentencing guidelines, while becoming more and more “advisory” every day, are still the single most important factor in determining a federal sentence. 

I proposed to the Sentencing Commission that they amend one of their policy statements on sentencing procedues to specifically give victims rights in the process.  My proposed change to section 6A.1.3 is:

When any factor important to the sentencing determination is reasonably in dispute, the parties and any involved victim shall be given adequate opportunity to present information to the court regarding that factor. . . .

Such a change would allow a crime victim, for example, to present evidence regarding whether an assault was “aggravated” or “minor” and the nature of the injuries that resulted from the assault — important factors in applying the assault guideline. In my testimony, found here, I offered a specific example of a crime victim who, remarkably, was not allowed to be heard at sentencing on the nature of his own injuries from an assault!  There is no good policy argument for preventing a victim from providing such information to the trial judge and giving the judge highly useful information for crafting the appropriate sentence.

Some of the Sentencing Commissioners seemed receptive to my proposal.  I hope that the full Commission will move forward with it soon and, more generally, will adopt procedures tomore fully  integrate crime victims into the sentencing process.