27 March 2012
Dear Illinois Legislator:
I write in support of the pending House Joint Resolution constitutional amendment to ILCON Art. 1, Sec. 8.1, known as Crime Victim Rights.
My perspective is different than most. For twenty-three years I practiced Criminal Defense law in three states, Ohio, New Mexico and Arizona. My son was to join me in that practice and all was going to plan until October 17, 2010 when he was the victim of a robbery gone bad; two young men decided they wanted the lap top computer he was carrying home from the college library. They shot him, killed him and they took his computer, leaving him dead on the black asphalt.
Within thirty days of his death, the Tempe Arizona Police Department arrested two men on First Degree Murder charges. That was in November, 2010 and as of the date of this writing, March 2012, only one case has resolved. The remaining case, a death penalty case, continues its plodding course.
So, out of the clear blue sky, I suddenly found myself, along with the rest of my family, in a criminal justice courtroom, but this time as victims. Not alleged victims, as I so callously referred to victims in the past; real victims of real bad men.
The death of my son, and my continued experience with the Criminal Justice System as an attorney and a “victim,” has caused me to re-evaluate many long-held philosophical positions, inside and outside the practice of law. And, slowly, as I viewed the courtroom from the perspective of the “victim’s bench,” I experienced a fundamental shift in my perception of the role of the victim in the Criminal process.
Prior to my son’s death, I believed the victim played no role and was wholly irrelevant to any proceeding in the Court. What I now conclude, through reflection, is not only is there room for the victim in the courtroom, but that “fundamental fairness” dictates that the victim play a small role in the proceedings; to at least give voice to their concerns regarding their own safety and the safety of the family unit. The “natural law” that guides constitutional principles does not lay fallow throughout time; it evolves with our society. Just as the law regarding the rights of the accused changed in response to government excess, so now must the law react to protect the victim from the excess of today’s criminal defendant. It is sad, but true.
The criminal process for victims, I have found, is a cold and sterile world of its own, whose inhabitants are conditioned to be unconcerned about the rights or interests of crime victims. My family and my son appear no more than an afterthought, introduced at the beginning of the hearing, and silent thereafter.
In addition to being acquainted with the courtroom from a new perspective, I have become involved with, or have met, scores of other victims of crime. They are a silent group, isolated by their own grief, by their fear of the defendant, by their own guilt and by their ignorance of the criminal process. And, very early in the process, they realize that they are relevant to the criminal process only in so far as they are relevant to the crime itself.
None of this is to say that the Legislature should attack the Constitutional Rights of the accused. In point of fact, the House Joint Resolution proposing the Constitutional Amendment to the Illinois Victim Bill of Rights is a very good example of striking a balance between these twin concerns; the rights of the accused and the safety and well-being, both spiritually and physically, of the crime victim.
For example, the proposed amendment at Section 8.1(a)(10) does not compromise, in any way, the right to reasonable bail. Instead, the proposal recognizes the right to bail but simply puts into law what Judges should do routinely anyway; consider the danger posed to the victim by the defendant when considering the terms of release after arrest and conviction. This, in no way, limits the Courts power to release the accused or the convicted, it simply gives the victims safety required consideration.
These proposed amendments to The Victim Bill of Rights grant victims of a crime a presence in the courtroom and in the process, because otherwise, we are just ghosts, spectators of an incoherent system, outsiders to a process designed to minimize or completely ignore our pain; a mute with something to say but no way to express ourselves, not even sign language. Victims do not want to interfere with the system, but over two hundred years, the Criminal process has evolved so skewed against any fair treatment of the victim, that, at times, the Criminal process feels more like a play than reality; that the case number represents nothing, least of all, my son, and all the sons and daughters who have been felled, through no fault of their own, victims who end up simply a corpus delecti, whose life is reduced to being no more than an element of a crime, a matter of proof.
The balance of the proposed amendments are designed to require the Courts and the Prosecutors to simply tell the Victim’s what is going on in a file. It seems to me that it is a fundamental right of human existence to be aware of, and to know about, proceedings that directly affect one’s future, one’s security, one’s existence. How can one deny the basic tenet that when a third party is making decisions that directly affect your welfare, and the welfare of your immediate family, that one should at least be informed and permitted presence to voice one’s concerns.
I can also tell you that I utilized Arizona’s version of the Victim Bill or Rights simply to draw the Court’s attention to the threatening behavior of a defendant and his family in a manner that hid their actions from the Court and lawyers involved. I wrote a motion and asked the Court to end the behavior which put everyone on notice as well. The defendant’s step-father was eventually banned from the courtroom and me and my family are escorted to our vehicles.
Without the Victim Bill of Rights there was no way to bring this behavior to the Court’s attention except through the prosecutors, who have other things to do. I took up no more than five minutes of court time.
I have practiced criminal defense law for more than two decades. I know the importance, in a free society, of protecting the rights of the accused. I know that nothing in the proposed amendments will infringe on those rights. And I now know, from the vantage of the father of a murdered son, that a free society can no longer tolerate the unfairness with which crime victims are treated. I urge you to pass the amendments and let the People of Illinois, through their vote, have their say and I would hazard to guess, it will pass.
Thank you for your time and attention in this matter.
Daniel Joseph Marco
father to Zachary Joseph Marco, deceased