Thursday, September 29, 2011

Victims Should be Told of Their Right to Counsel

In January of this year, at the request of the Court of Appeal in People v. Smith, the Attorney General of California wrote that California victims have a constitutional right to counsel at a restitution hearing.

       "Accordingly, Doe’s retained attorney properly sought and secured restitution for     Doe in accordance with Doe’s constitutionally enumerated rights to be heard and to seek and secure restitution. (See Cal. Const., art. I, §28, subds. (b)(8) & (b)(13)(A).) The language of Article I, section 28, subdivision (c)(1) unambiguously authorizes such conduct. . ."

           Page 6

The Attorney General advocated that victims have a constitutional right to counsel. The Smith Court agreed: "[victim] Doe had a right to not only be notified of the restitution and to be present, but also to be heard. She was also entitled to have counsel represent her in being heard."  

It is clear that victims have a right to counsel. The burning question now is whether this is such an important right that victims should be told about it.  To put it another way, do victims only get the right to counsel if they know about it and ask for it, or should all victims  be told about this right? We are fortunate to have a rich jurisprudence on this issue.

The U.S. Supreme Court established that the right to counsel is a fundamental right.

    "While the question has never been categorically determined by this court, a consideration of the nature of the right [to counsel] and a review of the expressions of this and other courts, makes it clear that the right to the aid of counsel is of this fundamental character."  Powell v. Alabama (1932) 287 US 45, 67 - 68.
    "The state decisions which refer to the matter, invariably recognize the right to the aid of counsel as fundamental in character."  Id at 70.

Not only is the right to counsel a fundamental right, but it is also a critical right which enables one to understand and exercise their other rights.

    "[W]ithout the aid of an attorney other protections which the law affords would often avail defendant little since it cannot be assumed that he is sufficiently articulate and adequately conversant with his constitutional and legal rights and his procedural duties to protect himself throughout the course of criminal proceedings."

    People v. Mattson (1959) 51 Cal.2d 777, 789, rev’d on other grounds, People v. Taylor (2009) 47 Cal. 4th 850.

This is certainly true of many victims who cannot decipher the rights listed on a Marsy’s Law card without talking with an attorney - let alone know how to exercise those rights in court.

Last century the California Supreme Court made it crystal clear that we do not make participants in the criminal system guess at whether they have a fundamental right to counsel:

    "Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs counsel.  We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request and by such failure demonstrates his helplessness. To require the request would be to favor the defendant whose sophistication or status had fortuitously prompted him to make it."

    People v. Dorado (1965) 62 Cal. 2d 338, 351(footnote omitted); overruled on other grounds People v. Cahill (1993) 5 Cal. 4th 478.

It would be a sad anomaly to have a justice system which deprives a less informed rape victim - by not telling her of her fundamental constitutional right to counsel - while giving the benefit of advice about the right to counsel to the man accused of the rapes.  Dorado makes it clear that such a  policy would favor not only defendants over victims, but also well heeled victims over poor victims.

I believe the law is clear on this issue and that no more decisions or statutes are needed  to determine whether a victim’s right to counsel should remain a secret from most victims - it should not and victims should be told in clear, simple language of this right.

Tuesday, September 20, 2011

Victims are Not Told of their right to an Attorney, But Criminals are

There is something shocking happening every day in the California court system. If a victim of multiple rapes meets a District Attorney, she will never be told of her constitutional right to counsel. But if the defendant charged with those multiple rapes meets the same  District Attorney, the District Attorney will immediately tell him of his right to counsel.

Several years ago Marsy’s law passed and gave victims a constitutional right to an attorney (at their own expense).  A brand new case, People v. Smith, has just ruled that the California Constitution means what it says:

 Marsy's Law added several provisions relating to victim restitution to the California   Constitution. The victim has the right (1) to be notified of and to be present at all public proceedings, (2) to be heard at any proceeding, including the sentencing hearing, and (3) to receive restitution. (Cal. Const., art. I, § 28, subd. (b)(7), (8) & (13).) The victim has the right to "seek and secure restitution . . . ." (Cal. Const., art. I, § 28, subd. (b)(13)(A).) And "[a] victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the rights enumerated in subdivision (b) in any trial or appellate court with jurisdiction over the case as a matter of right.
As a result of these provisions, [victim] Doe had a right to not only be notified of the restitution and to be present, but also to be heard. She was also entitled to have counsel represent her in being heard.

It is very sad that prosecutors give charged criminals better advice about their right to counsel than they give to victims.

I am not aware of any District Attorney’s office in the state who advises victims of their constitutional right to counsel.  If one visits the links to the Los Angeles, Orange County and San Francisco District Attorneys' pages on Marsy’s Law one will see that there is not one word about the right of a victim to an attorney:

    link to LA County DA on Marsy’s law

    link to Orange County DA on Marsy’s law

     Link to SF County DA on Marsy’s law: