The Volokh Conspiracy - My First Post -- Crime Victim's Right to Be Heard:

Well, it's nice to be aboard. I'm excited to be a part of this great group — thanks Eugene for thinking of me.

I noticed that when I was introduced as a co-conspirator, a few readers wondered whether I really left my old job as a federal district court judge here in Salt Lake City mainly to do pro bono crime victims' litigation and research on similar subjects. Well, actually, yes I did.

Providentially, my last day on my old job I picked up a copy of the Salt Lake Tribune to read a story entitled something like "Crime Victims Denied Day in Court." The article was about Sue and Ken Antrobus, whose daughter Vanessa was murdered at the Trolley Square massacre last February. For more about Vanessa (the first in her family to graduate from college), go to her memorial website. I now represent them on crime victims' issues — pro bono, since they have limited income.

Vanessa was murdered with a Smith & Wesson .38 handgun, criminally sold to Sulejman Talovic by Mackenzie Hunter. Hunter, a cocaine user at the time, had previously stolen the handgun. Here are the salient facts: Talovic approached Hunter, asking for help getting a handgun. He explained that he was 17, and therefore couldn't buy one legally. Hunter asked why he wanted to buy a handgun, and Talovic said it was to rob a bank. (Hunter apparently claims he thought this was a joke.) Knowing full well that it was a violation of criminal law to sell to Talovic, Hunter sold the handgun and seven months later Talovic committed the largest mass murder in modern Utah history.

Talovic was killed that night (by an armed, off-duty police officer). Hunter was later prosecuted here in Utah by federal prosecutors, who charged him with felony illegal sale of a handgun to a minor "knowing and having reasonable cause to know" that the handgun would be used in a crime of violence. After Hunter pled guilty to the misdemeanor version of this charge (no allegation of knowing, etc.), Sue and Ken sought my help to make a "victim impact statement" on behalf of their daughter at his sentencing. Under federal law — the Crime Victims Rights Act, 18 USC 3771 — they entitled to do so if Vanessa was "directly and proximately" harmed by Hunter's crime. The district judge held that she was not so harmed — and also declined to use his discretion to hear from them at sentencing.

Under the CVRA, crime victims are entitled to file for a writ of mandamus in the Court of Appeals, and we did so last week with this document.

Unfortunately, last Friday, the Tenth Circuit ruled against the Antrobuses

The Circuit said that when Congress authorized crime victims to petition for a "writ of mandamus," it did not intend for victims to have ordinary appellate rights like other litigants. Rather, the Circuit thought that the mandamus jurisprudence required that the crime victim's claim be "clear and indisputable." In doing so, the Tenth Circuit specifically rejected rulings from the Second and Ninth Circuits that crime victims' were entitled to ordinary appellate review. Under that demanding standard, the Circuit thought this was a "difficult" case, but concluded that the Antrobuses had not shown their entitlement to speak in court was clearly proven.

Judge Tymkovich, concurring, wrote separately to say that the process in the case had been unfair to the Antrobuses. The "bank robbery statement" that I mentioned above, was disputed by the defense, and the district court seemingly concluded that it had never been made — a fact that majority then used against the Antrobuses. Judge Tymkovich thought that the Antrobuses should have received a better opportunity to discover information about that statement.

On Monday, we went back to the district court to seek discovery on the issue of whether the government had information in its file proving the bank robbery statement. My former colleague Judge Kimball, a very thoughtful judge who moves his cases rapidly, ruled against us in a written opinion a matter of minutes, and then sentenced Hunter to 15 months in prison (the low end of the applicable sentencing guideline range.)

So there you have it — we will be back to the Tenth Circuit shortly, asking for rehearing on the question of whether crime victims should be rendered second class citizens in the federal courts — lacking ordinary appellate review of their claims — and seeking review of Judge Kimball's decision to deny the Antrobuses any information about whether Hunter and Talovic discussed a bank robbery during the gun sale — again, a right that other litigants routinely receive.

I will have more to say about all this ... after I see what the readers think. No one should be surprised that, imho, Sue and Ken should have their day in court.

	[Paul Cassell, January 16, 2008 at 12:33am] Trackbacks My First Post -- Crime Victim's Right to Be Heard: Well, it's nice to be aboard. I'm excited to be a part of this great group — thanks Eugene for thinking of me. I noticed that when I was introduced as a co-conspirator, a few readers wondered whether I really left my old job as a federal district court judge here in Salt Lake City mainly to do pro bono crime victims' litigation and research on similar subjects. Well, actually, yes I did. Providentially, my last day on my old job I picked up a copy of the Salt Lake Tribune to read a story entitled something like "Crime Victims Denied Day in Court." The article was about Sue and Ken Antrobus, whose daughter Vanessa was murdered at the Trolley Square massacre last February. For more about Vanessa (the first in her family to graduate from college), go to her memorial website. I now represent them on crime victims' issues — pro bono, since they have limited income. Vanessa was murdered with a Smith & Wesson .38 handgun, criminally sold to Sulejman Talovic by Mackenzie Hunter. Hunter, a cocaine user at the time, had previously stolen the handgun. Here are the salient facts: Talovic approached Hunter, asking for help getting a handgun. He explained that he was 17, and therefore couldn't buy one legally. Hunter asked why he wanted to buy a handgun, and Talovic said it was to rob a bank. (Hunter apparently claims he thought this was a joke.) Knowing full well that it was a violation of criminal law to sell to Talovic, Hunter sold the handgun and seven months later Talovic committed the largest mass murder in modern Utah history. Talovic was killed that night (by an armed, off-duty police officer). Hunter was later prosecuted here in Utah by federal prosecutors, who charged him with felony illegal sale of a handgun to a minor "knowing and having reasonable cause to know" that the handgun would be used in a crime of violence. After Hunter pled guilty to the misdemeanor version of this charge (no allegation of knowing, etc.), Sue and Ken sought my help to make a "victim impact statement" on behalf of their daughter at his sentencing. Under federal law — the Crime Victims Rights Act, 18 USC 3771 — they entitled to do so if Vanessa was "directly and proximately" harmed by Hunter's crime. The district judge held that she was not so harmed — and also declined to use his discretion to hear from them at sentencing. Under the CVRA, crime victims are entitled to file for a writ of mandamus in the Court of Appeals, and we did so last week with this document. Unfortunately, last Friday, the Tenth Circuit ruled against the Antrobuses The Circuit said that when Congress authorized crime victims to petition for a "writ of mandamus," it did not intend for victims to have ordinary appellate rights like other litigants. Rather, the Circuit thought that the mandamus jurisprudence required that the crime victim's claim be "clear and indisputable." In doing so, the Tenth Circuit specifically rejected rulings from the Second and Ninth Circuits that crime victims' were entitled to ordinary appellate review. Under that demanding standard, the Circuit thought this was a "difficult" case, but concluded that the Antrobuses had not shown their entitlement to speak in court was clearly proven. Judge Tymkovich, concurring, wrote separately to say that the process in the case had been unfair to the Antrobuses. The "bank robbery statement" that I mentioned above, was disputed by the defense, and the district court seemingly concluded that it had never been made — a fact that majority then used against the Antrobuses. Judge Tymkovich thought that the Antrobuses should have received a better opportunity to discover information about that statement. On Monday, we went back to the district court to seek discovery on the issue of whether the government had information in its file proving the bank robbery statement. My former colleague Judge Kimball, a very thoughtful judge who moves his cases rapidly, ruled against us in a written opinion a matter of minutes, and then sentenced Hunter to 15 months in prison (the low end of the applicable sentencing guideline range.) So there you have it — we will be back to the Tenth Circuit shortly, asking for rehearing on the question of whether crime victims should be rendered second class citizens in the federal courts — lacking ordinary appellate review of their claims — and seeking review of Judge Kimball's decision to deny the Antrobuses any information about whether Hunter and Talovic discussed a bank robbery during the gun sale — again, a right that other litigants routinely receive. I will have more to say about all this ... after I see what the readers think. No one should be surprised that, imho, Sue and Ken should have their day in court.