This is a letter written to Congressman Trent Franks presenting a case in support for a pending house bill that would ultimately result in a U.S. Constitutional Amendment granting Victims of Crime Some very basic Rights. It is a much stronger letter than the one I wrote to the Illinois Legislature but some parts are, in fact, the same. There is a hearing in Washington on 26 April 2012 on the pending legislation.
April 23, 2012
CASE FOR SUPPORT OF H.J. RES. 106
HEARING DATE 26 APRIL 2012
Congressman Trent Franks
C/O Ms. Jacki Pick,
Deputy Chief of Staff and Counsel for the Subcommittee
I write in support of the Victim’s Rights Amendment, now known as H.J. Res. 106.
My perspective is different from 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.
Now, eighteen months later, the case against the shooter is still pending in the Maricopa County Superior Court, State of Arizona, and there is no end in sight. The defendant is manipulating the Justice System, ignoring and manipulating his attorney, mocking me and my family and because Judges, particularly at the State level, do not like to be reversed, it appears he will get his way.
Despite the fact that he is firing his appointed attorneys, after a year and a half, for no good reason. Despite the fact that members of his family are regularly removed from the courtroom by the Judge for aggressive behavior. Despite the fact that the defendant and his family threaten and lecture me and my family. And, despite that fact that these behaviors, are calculated and intentional, he is cloaked by practical Constitutional immunity. Any move by the Court to protect us, years from now, may be interpreted as a violation of the defendant’s Constitutional rights causing reversible error. So the path of least resistance is to give in to his demands, and this trial will be delayed until 2014, at the earliest.
Now I ask you: To whom do WE turn?
The answer is, nowhere and to no one.
While the defendant schemes delay, my family and I sit silently, shaking our collective heads, only sobbing later, in the privacy of our respective homes.
Understand that for years, and I wholly admit this, I exploited the Bill or Rights in favor of my client’s interest. Of course I did, it was my duty, it was my job and I was ethically obligated to do so. But one of the main reasons I was able to be so manipulative is that there is no countervailing interest. In a Criminal Courtroom, only the defendant matters. Justice, whatever one’s concept of justice might be, is merely a probability, a hoped for end result of the Process Due only the defendant. And since there is no counterweight to the defendant’s interest, justice is blind only insofar as Victims are concerned; but she sees clearly the interest of the accused.
In the State of Arizona there is a Victim’s Bill of Rights in the state constitution. But because it does not have any Federal teeth, even the limited rights of notice, presence, the right to be heard, and the right to a speedy trial are really of no effect. Whether a State has a Victim Bill of Rights or not, the Victim of a heinous crime will endure three or more years of pretrial process fraught with delay after delay and hearing after hearing. With no mechanism to be heard, we are mere patrons to the passion play; watching and suffering in silence because we are excluded from the process. Excluded. Of no force and effect. Irrelevant. Impotent.
So long as our meager state right is weighed against, for example, the Fourth or Fifth Amendment to the Constitution of the United States, the phrase “Victim Rights” remains a slogan and political ploy. The fact is, a Judge knows when he or she is treading on reversible territory, so does the Prosecutor, and the defense simply exploits those fears.
But, if we, the only innocent persons sitting in the courtroom, had some small amount of equal standing, then the Prosecutors could argue, and the Judges could order, for once, a reasoned decision that actually includes the interests of ALL parties to the proceeding. Absent a Federal Amendment, this will not and cannot happen. Continuances will be granted without our input, bail and conditions of release will be set without consideration for our safety and hearings will be held without our presence because we were not notified. And worse of all, our dead sons and daughters will be identified only by case number with a cursory nod of the head acknowledges the presence of the surviving family. Dignity? There is none in a courtroom for a victim of crime.
The murder of my son has obviously caused me to re-evaluate many long-held philosophical positions, inside and outside the practice of law. A view from the perspective of the “victim’s bench,” changes a person. Although this experience has changed my life on so many different levels, the relevant shift is 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. And, that view prevails throughout the land today. I was not alone!
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 and the passage of time and the absurdness of the defendant’s motions.
The “natural law” that guided the constitutional principles penned by our Founding Fathers must not be allowed to lay fallow; it must be allowed to evolve naturally with societal realities. 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 defendants. The Courts and the Prosecutors need safe harbor to make arguments everyone already knows should be made. It is sad, but true.
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.
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; just a matter of proof.
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 through their vote, have their say. 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