The federal Crime Victims' Rights Act gives crime victims "the reasonable right to confer with the attorney for the Government in the case." 18 U.S.C. sec. 3771. How far does this right extend?
In a previous post (found here) I noted the Eleventh Circuit's recent decision interpreting the Crime Victims' Rights Act as providing protection to victims' of financial fraud even when they are not listed as victims in the indictment filed by the Government. In the wake of that ruling, the Government has filed a petition for panel rehearing with the Circuit. Now the victims (whom I represent along with other attorneys) have filed motion to strike the Government's Rehearing Petition alleging a violation of their right to confer.
A few facts: The victims sought to confer with the Government before it filed any rehearing petition. The Govenrment refused, sending a note to the victims that the right to confer in the CVRA does not extend that far.
The victims' motion to strike, found here, contends that the Government's failure to confer with them about the rehearing petition violated the CVRA and that the proper remedy for that violation (and others) is to strike the rehearing petition.
Here is the introduction to the motion:
The victims come to the Court (reluctantly) because the Government has bluntly refused to confer with them and thus has clearly violated the CVRA. In brief, immediately after this Court granted the victims’ mandamus petition, the victims sent a detailed letter to the U.S. Attorney’s Office handling the case requesting an opportunity to promptly confer about important issues that had arisen in the wake of the ruling. The Office chose, however, to ignore that letter, instead informing the district court (but not the victims) that it would be seeking rehearing. Upon learning of the Office’s apparent decision, the victims again immediately requested an opportunity to confer. Again, the U.S. Attorney’s Office chose not to confer, belatedly informing the victims in a terse e-mail that, in its view, the CVRA did not give the victims any rights to confer about rehearing and the issues intertwined with it. The prosecutors’ interpretation of their obligations under the CVRA is too narrow. The CVRA broadly confers on victims “[t]he reasonable right to confer,” 18 U.S.C. § 3771(a)(5), a right which the congressional sponsors of the Act stated “is intended to be expansive." 150 Cong. Rec. S4268 (Apr. 22, 2004) (statement of Sen. Feinstein) (emphasis added). The U.S. Attorney’s Office is therefore simply wrong as a matter of law in concluding that it need not confer with the victims about its rehearing petition.
I thought VC readers might be interested in the victims' motion and in the broader question of how far does a right to confer extend?
There are a variety of philosophical and practical problems created by victims' rights statutes, chiefly involving enforcement (I support these laws, just note the difficulties they occasionally pose). These problems are greatly exacerbated when the prosecutor refuses to even bother to meet with the victims. By refusing to meet its obligations, the government puts the court in a very difficult quandry, in which it may have to put aside a ruling which may well be substantively correct, simply by virtue of the prosecutor's failure to confer.
When I was a prosecutor, we took the position that if you couldn't bear to look the victim in the eye and explain why you were making that particular decision, then you were clearly making the wrong decision.
Beyond that, I don't see where the initial order was stayed pending appeal or application for rehearing. It would, then, be in effect at least until a ruling on the motion for rehearing... which is why the prosecutors did not refuse to confer with the victims on the grounds that they weren't victims, but instead refused on the grounds that they don't have to confer in such circumstances even for statutory victims.
I'm still unresolved from the last thread as to whether these individuals are in fact "victims" for purposes of the statute.
Thus, it's possible (though I can't without knowing more conclude) that either (1) the right to "confer" was satisfied under these circumstances because the victims had an opportunity to send "a detailed letter" outlining their concerns to the government, although the government did not elect to respond; or (2) that, if enough conferring took place before the initial hearing, no additional conferring was "reasonabl[y]" required before a mere petition for rehearing.
Also, FWIW, I think you're unfair in the argument at the top of p. 3 that the government falsely claimed it would protect victims' rights while, behind their backs, it sought to strip them of those rights. As I read it, the government said it would "provide[]" the rights required by law, and is now litigating to determine the scope of those rights.
How about privilege? The government and the victims are adversaries here. Forcing the government lawyers to confer with the victims puts them in a situation where they may end up revealing work product and lawyer-client privileged material. Indeed, if they didn't, the victims will then go in and say the conference wasn't meaningful.
And all this, of course, is a nice illustration of why it is a very bad idea to declare "victim's rights". The victims' interests are not the same as the government, and government should have the power to screw over victims when the public interst requires it.
This is an ancillary proceeding to compel the government to provide the petitioners with the rights provided by the statute, not involving any offense.
I do hope that the motion linked to is a draft, though. It does not appear to be final work product. There is too much throat clearing (twice in the excerpt!) and inconsistent use of defined terms (look at the conclusion), among other things.
In fact, the act nowhere prohibits the government from "screwing over victims" when the interests of justice require it. All the act does is say that before you take action in a case which will, in fact, have a significant impact on the innocent victim of the crime for which the defendant is charged, the prosecutor has to talk with the victim about it. That's not an onerous burden.
@John Jenkins: that may be a reasonable position to argue, at least. But I would still argue that because this is all concerning the criminal cases of U.S. v. Miller and U.S. v. Coon. All of the CVRA issues are merely ancillary to those judicial proceedings.
What is being appealed, a decision on the fraud case itself, or the ruling that the CVRA applies to victims of financial crimes?
If it is the latter, then MGA's question is a good one. In this case the 'victims' were in fact the plaintiffs and the government the defendant. Is a losing defendant required to first meet with the plaintiff before they can file an appeal? I'm sorry, but the 'victims' assertion in this case is ludicrous.
If, post ruling, the government attempted to settle or otherwise negotiate the fraud case without meeting with the victims THEN they have a complaint, but now, I don't see it.
It appears to me that the statute violated here is not the right to "confer," but is §3771 (a)(2) &(3) (page 2 of Crime Victims' Rights Act) --
I assert that litigation on a motion seeking rehearing is a "public proceeding."
Also, the right to "confer" sounds too vague -- "confer" can mean anything.
I disagree -- the Crime Victims' Rights Act does not prescribe any such remedy. I assert that the proper remedy now is §3771 (a)(3) above -- enforcement of "the right to not be excluded from any such public proceeding."
Complicating this case is the government's claim that the alleged victims are not really victims within the meaning of the Crime Victims' Rights Act -- but I assert that the government should not be allowed to escape the provisions of the Act merely by making such a claim.
Has the panel's mandate issued yet? If it has not, then there is no order yet that would grant the victims their right as victims.
If the mandate has issued, I think this is a trickier situation. It's odd to say that the government has to confer with the putative victims about its decision to petition for rehearing of the panel's opinion that the putative victims are victims. Indeed, what would this meeting look like?
AUSA: "We're going to petition for rehearing."
Victims: "We don't think you should do that. We're victims."
AUSA: "We disagree."
Victims: "We disagree with you."
AUSA: "Okay, then. Well, I guess we disagree. See you at oral argument, if there is one."
Indeed, might the e-mails back and forth constitute "consultation" on the issue? Just because you disagree doesn't mean you didn't consult.
If prosecutors had to identify, locate, notify and confer with every single victim of a large-scale crime before they filed a motion or appeal in court -- and if victims who weren't notified could walk into court and file motions to strike claiming their rights were violated -- prosecution would be hamstrung. So hamstrung, I would think, that a clever criminal might with a good lawyer might be well advised to include a few friendly "victims" in the scheme who are willing to use whatever leverage their "victim's" rights give them to muck prosecutors up. A right to file motions to strike if one doesn't think one has been consulted sufficiently would seem to make such an approach almost too good to be true.
That really doesn't fit well at all. In what way is the prosecution ignoring a letter violating either a right to notice or to be present at a public proceeding? These two provisions seem pretty clear aimed at requiring that victims be placed on the notice list for court hearings and be allowed to attend. I don't think these sections really impose any duties or have any relevance to the prosecution.
Your above statement is inconsistent. The minimum "duty" imposed on the prosecution is that the victims "be placed on the notice list for court hearings and be allowed to attend," but the prosecution failed to even inform the victims of the prosecution's intention to seek a rehearing:
And the law is not specific about what is meant by the term "excluded" in the provision, "The right to not be excluded from any such public proceeding." Inclusion in the public proceeding could even include testimony, oral argument, or amicus briefs.
ARCraig said,
Victims often play on the sympathies of juries by denouncing defendants in court, and that should not be allowed. These denunciations have nothing to do with the issue of guilt or innocence. Judges and prosecutors should also be prohibited from denouncing defendants. A particularly bad example was Judge Jones' demagogic denunciation of the defendants in his Kitzmiller v. Dover opinion.
Also, if I were representing a defendant in a case such as this (lots of victims), I would make really good friends with a couple of them. Then, I would have the de facto right of consultation.
But victims and defendants can sometimes have overlapping interests. Many times, "victims" are friends or family members of defendants, and want the defendants back in their lives with minimal disruption. In larger cases (such as the BP litigation), the defendants could offer financial settlements to the victims in return for pressure on the prosecutor to decrease or drop charges. In one murder case I handled, the victims had access to a treasure trove of information in the hands of third parties that I did not, and through their counsel, they provided it all to me. In return, I provided them with information they did not have access to.
If such a rehearing were held, however, when the hearing was scheduled, then notice would be sent to everyone on the list. Requiring a prosecutor to inform the alleged victims of what they are sending to the court would be requiring them to discuss their litigation strategy with them, which seems quite far afield of the right to notice, and if anything, would have to fall under the consultation provisions.
The right not to be excluded could indeed extend so far, but the prosuecution has no say in whether they get to testify, etc. That's the Court's call. To the extent that the notice and preparation provisions are intertwined -- such as they need sufficient notice to prepare an amicu brief -- they should receive the same advance warning that defense would get.
1. I'm hostile to the VRA.
2. I do not think that it doesn't "require much of anything". Indeed, it's pretty clear it requires the consultation rights that Judge Cassell is arguing for.
3. I am quite fearful of compromising the lawyer-client and deliberative process privileges of government prosecutors, plus their rights under the work product doctrine, by requiring conferences with people whose interests may be adverse to them. However, because these privileges exist at the common law level alone (except, perhaps, when they relate to the Fifth and Sixth Amendment rights asserted by a criminal defendant), I have no doubt as to Congress' power to override them.
In other words, I think Judge Cassell has a good argument, though I think that it will lead to a terrible result from a policy standpoint.
I also think one of the commentators was correct--the "right" to confer doesn't require much. The email exchange might be enough.
And has anyone done a separations of powers challenge/defense of this law? What part of the Constitution authorizes Congress to tell the executive how much of the executive's case the executive must disclose? If the DOJ doesn't consult enough in the judge's mind, can the judge force the Executive Branch to prosecute a case instead of dismissing it?
Which leads to my final point. The DOJ has one remedy to cases in which the victims demand too much--nolle prosequi.
Not necessarily -- I am talking only about what the prosecutors file with the court, not about their litigation strategy. What prosecutors file with the courts is generally public information. Ex parte communications with the courts are generally not allowed, with limited exceptions, e.g.: (1) public disclosure of the communication would endanger someone or (2) there is an emergency, in which case an effort must be made to inform the other parties as soon as possible.
The original post says,
As I said before, IMO the remedy of striking the petition for rehearing is excessive and unauthorized.
Since the victims are not being prosecuted as criminals, I assert that the litigation over the right to confer is a civil action, not a criminal action, and hence the Federal Rules of Civil Procedure should apply, and the victims should have the right to seek intervenor status pursuant to FRCP Rule 24. As intervenors the victims would have all the rights of regular parties.
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