Amicus Curiae Brief — Payne v. Tennessee

oa

i)

i)

hated

—_

=

=

=

=

BEST

Il.

III.

QUESTIONS PRESENTED FOR REVIEW

HAVE CRIME VICTIMS RELINQUISHED TO THE

STATE THEIR RIGHTS AS INDIVIDUAL

‘CITIZENS TO EXACT RETRIBUTION FOR HARM

COMMITTED AGAINST THEM, CREATING A

FUNDAMENTAL DUTY ON THE PART OF THE

STATE TO PROTECT AND VINDICATE THESE

RIGHTS?

DOES THE 8TH AMENDMENT ALLOW FOR THE USE

OF VICTIM IMPACT STATEMENTS IN THE PEN-

ALTY/SENTENCING PHASE OF A CAPITAL CASE?

SHOULD A CRIME VICTIM BE RECOGNIZED AS

A PARTY AND HAVE STANDING INDEPENDENT

FROM THE PUBLIC PROSECUTOR FOR THE

LIMITED PURPOSE AT THE SENTENCING PHASE

(INCLUDING THE PENALTY PHASE OF A

CAPITAL CASE) TO PRESENT A VICTIM IMPACT

STATEMENT?

TABLE OF CONTENTS

Page

Questions Presented For Review .....+.+-+-i

Table of Authorities . .....+. +++ +++ «iv

Identity & Interest of Amici Curiae ..... .2

Summary of Argument ....-+ +++ « «© © © «© «5

Introduction ...+«+se«e-eeeee ee eevee ee F

Argument ..+++se#e22e ee © © © © © © 0 oo Oke

I.

Il

SINCE CRIME VICTIMS HAVE RELINQUISHED

TO THE STATE THEIR RIGHT TO EXACT

INDIVIDUALIZED RETRIBUTION FOR INJURY

CAUSED AT THE HANDS OF A WRONGDOER, THE

STATE HAS A FUNDAMENTAL DUTY TO VINDICATE

VICTIMS’ INTERESTS ... +++ +2 © « « « 12

-THE PURPOSE OF A SENTENCING HEARING IS TO

BALANCE THE RIGHTS OF THE CONVICTED AGAINST

THE HARM SUFFERED BY THE VICTIM IN ORDER TO

ACHIEVE THE SOCIETAL GOAL OF DETERRENCE AND

ii

es: oe chen e sp » we ee eee

FAIRNESS WITHOUT TRANSCENDING THE

CONSTRAINTS OF THE 8TH AMENDMENT... . 19

III.THE RIGHT OF CRIME VICTIMS TO JURY

CONSIDERATION OF VICTIM IMPACT STATEMENTS

OR COMMENT TO THE JURY BY THE PROSECUTOR

CONCERNING VICTIM HARM IN THE PENALTY/

SENTENCING PHASE OF A CAPITAL CASE, WILL

BE RESOLVED BY RECOGNITION OF VICTIMS’

LEGITMATE CLAIM TO PARTY STATUS (STANDING)

INDEPENDENT FROM THAT OF THE PUBLIC

PROSECUTOR FOR THIS PURPOSE ...... .29

iii

TABLE OF AUTHORITIES

CASES

Vv j ’

64 Cal 2d 159 (1966) ...seeeeesceeeeeeceeeees oo3d4

Booth v. Maryland,

482 U.S. 496 (1987) ....-.+0++++19,24,27,28,30,31

Bullen v. Superior Court,

204 Cal App. 3d 22 (1988) .. cee eee eee reer eevees 35

Furman v. Georgia,

Se ET ED «6 va cdoceeseebeceseeeroeess 21

,

ee A cans 6eese00ssee un te 20,21,37

McGautha v. California,

ee Oe ec ccccegcanaseseseceeeennes 20

Minor v. Happersett,

sd ce cue be eeeeeeesetenees 13

i. eee |

8 8 eer gs eee ee 10

’

RS a Se 13

,

Sees Gs Oe BE EROOOD co ccccceccscensesa 35

(146 Cal App. 24 7 (1956) .cccccccccccceccccecs 34

Snyder v. Massachusetts,

eS ee 22

,

os * 8. ye ee eee 22,23

iv

PERIODICALS

Page

Aynes, The Right Not to be a Victim,

11 Pepperdine L. Rev. 63 (1984)......14,16,17,34

Carrington, Crime and Justice:

, Critical Issues,

The Heritage Foundation (1982)......eeeeeeeees 15

Gittler, Expanding the Role of the Victim

in a Criminal Action: An Overview of

Issues and Problems, 11 Pepperdine

L. Rev. 117 (1984) e*eeeenees3enereoeeeseeee#eeeee#ee#ee#e#e#« 14,17

Hudson, The Crime Victim and the

7 : . —_

11 Pepperdine L. Rev. 23 (1984)......ceeeeeees 25

Murphey, The Significance of Victim Harm:

Booth v. Maryland and the Philosophy of

Punishment in the Supreme Court,

51 Univ. Chicago Law Rev. 1303 (1988)......... 26

Nicholson, G. Forgotten Victims:

An Advocate’s Anthology, p. vi, (1977)......... 9

Roland, D., Progress in the Victims Movement:

" . ”

11 Pepperdine L. Rev. 35, 51 (1989)........ 17,35

MISCELLANEOUS

Model Code of Professional Responsibility

EC 5-15 Ce 6 060 06650605060666666% se f#eeeee. 33,34

Statement: 137 Cong. Rec. S3021-02 (daily ed.

March 12, 1991) (statement of Sen. Biden)..... 18

Vv

NO. 90 - 5721

STATUTES

IN THE

California Penal Code, Sec. 1191.1.........-:- 35 SUPREME COURT OF THE UNITED STATES

Victim and Witness Protection Act of 1982, October Term, 1990

Pub. L. No. 97-291, 96 Stat. 1242 (1982)...25,26

PERVIS TYRONE PAYNE,

TEXTS

16A Am. Jur. 2d Constitutional Law Petitioner,

Sec. 363 (C1979) cccccccccccecce e*e*e ee<esseeee#e#ee#e#ee#ee#e#e#se#e#* 36 Vv

16A C.J.S. Constitutional Law

ae | ea 19 STATE OF TENNESSEE,

Respondent,

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF TENNESSEE

BRIEF, AMICI CURIAE, OF

THE NATIONAL ORGANIZATION FOR

VICTIM ASSISTANCE, THE NATIONAL

VICTIM CENTER, THE CRIME VICTIMS

LEGAL CLINIC, AND CALIFORNIA

ATTORNEYS FOR CRIME VICTIMS

vi

1. Identity and interest of Amici Curiae:

THE NATIONAL ORGANIZATION FOR VICTIM

ASSISTANCE, founded in 1975, is a national

nonprofit membership organization dedicated

to improving the rights and services for

victims of crime through national advocacy,

victim technical

counseling, assistance,

training and membership support. NOVA is

located in Washington, D.C.

THE NATIONAL VICTIM CENTER, founded in honor

of Sunny von Bulow, is a national, nonprofit

organization based in Fort Worth, Texas. The

Center’s purposes are to promote

responsiveness of the criminal justice system

to the rights and needs of the victims of

violent crime, as well as to increase the

American public’s awareness concerning the

plight of crime victims through educational

programs, conferences, and publications.

THE CRIME VICTIMS LEGAL CLINIC is a project of

the California Center on Victimology, a

nationally recognized comprehensive crime

victim service agency founded in 1985 and

based in San Diego, California. Among the

goals of the Clinic and the Center are to

protect the rights of crime victims in the

criminal justice system, to provide training

to the legal and mental health communities

who counsel and treat victims of crime, and

to reduce the trauma suffered by crime

victims, their families, and the community in

which they live.

CALIFORNIA ATTORNEYS FOR CRIME VICTIMS is a

statewide network of trial litigators,

founded in 1989, to protect the rights of

crime victims in the civil and criminal

justice systems, to give them a stronger,

more coordinated voice in legal proceedings

affecting their lives, to share information,

strategies and litigation developments and to

train civil litigators to represent crime

victims.

2. Desirability of a Brief Amici Curiae:

the instant case is one in which the

interests of victims of crime are directly

involved. Amici represent two national

victim advocacy organizations, the only law

firm (legal clinic) in the country whose only

clients are crime victims and is concerned

with constitutional issues in criminal law,

and the first

statewide attorneys

organization dedicated

to protecting the

rights of crime victims in the civil and

criminal justice systems.

3. Reasons For Believing that Existing Briefs

May Not Present all Issues, and Avoidance of

Duplication: In this brief, Amici will

discuss national policy - related and legal

issues relating to the impact of this

Court’s decision in the instant case and

peculiar to the crime victim as the primary

client. Counsel for Amici have consulted

with Counsel for Respondent in an effort to

avoid unnecessary duplication and believe

that their policy and legal argv#ents will

that are not otherwise

present issues

raised.

4. Consent of the Parties: Counsel for the

Respondent and Counsel for the Petitioner

have consented to this filing. Letters to

this effect are lodged with the Clerk of

the Court.

SUMMARY OF ARGUMENT

I. SINCE CRIME VICTIMS HAVE RELINQUISHED

Il.

III.

TO THE STATE THEIR RIGHT TO EXACT

INDIVIDUALIZED RETRIBUTION FOR INJURY

CAUSED AT THE HANDS OF A WRONGDOER,

THE STATE HAS A’ FUNDAMENTAL DUTY TO

VINDICATE VICTIMS’ INTERESTS.

THE PURPOSE Dg A SENTENCING HEARING IS

TO BALANCE THE RIGHTS OF THE CONVICTED

AGAINST THE HARM SUFFERED BY THE

VICTIM IN ORDER TO ACHIEVE THE

SOCIETAL GOAL OF DETERRENCE AND

FAIRNESS, WITHOUT TRANSCENDING THE

CONSTRAINTS OF THE 8TH AMENDMENT.

THE RIGHT OF THE CRIME VICTIM TO JURY

CONSIDERATION OF VICTIM IMPACT

STATEMENTS, OR COMMENT TO THE JURY BY

THE PROSECUTOR CONCERNING VICTIM HARM,

IN THE PENALTY/SENTENCING PHASE OF A

CAPITAL CASE, WILL BE RESOLVED BY

RECOGNITION OF VICTIMS’ LEGITIMATE

CLAIM TO PARTY STATUS (STANDING)

INDEPENDENT FROM THAT OF THE PUBLIC

PROSECUTOR FOR THIS PURPOSE.

INTRODUCTION

As originally conceived, our criminal law

was designed to accomplish a very limited

but necessary function. That purpose

was, quite simply, to protect citizens

who chose to exercise their freedom and

liberty within the constraints imposed by

law, from citizens who chose not to. The

need to secure the safety, liberty and

property of law-abiding citizens has

always been one of the primary

justifications for the very existence of

government.

This principle was averred

in the Declaration of Independence as the

creators’ endowment of the

inalienable right to life, liberty

and the pursuit of happiness." It

was carried into the preamble of the

United States Constitution by a

statement of purpose to "establish

justice, insure domestic tranquility,

and promote the general welfare." It

has long been recognized by the

United States Supreme Court that

government “owes a duty to the

people...to maintain peace and order

and to assure the just enforcement of

the law." The right of personal

security from criminal aggression is

an inherent and inalienable right.

It seems clear that victims, both

actual and potential, are central to

the criminal justice system. It may

be that protection of the lives,

liberty and property of the citizenry in a

free society is but one of the basic

purposes of government. However,

beyond question, it is the primary purpose

which justifies the existence of a

criminal justice systen. Nicholson, G.,

Forgotten Victims: An Advocate’s

Anthology, P. vi (1977).

There has surfaced within the last decade, a

question about the role prosecutors and

courts have assigned to crime victims, whom

the former purport to represent for some

purposes - but not others - and whom the

latter have treated as appendages of the

prosecutor.

Recent case law supports a position that the

crime victim has a role independent from that

of the prosecutor, which may be tempered by

judicial authority, resulting in at least

limited standing, including the right to make

victim impact statements at sentencing

hearings in capital cases.

If, however, crime victims are found to have

relinquished their rights to exact their own

direct and immediate justice for the greater

good of the state, then there is a compelling

and fundamental duty of the state to support

the victim and to represent these interests

with no less vigor than is required of a

effective

defense attorney in the

representation of his client.

This Court has previously expressed concern

for victims of violent crime. Justice Byron

White, in his dissent in Miranda v. Arizona,

384 U.S. 436 at 542 (1966) stated:

- 10 -

In some unknown number of cases the

Court’s rule will return a killer, a

rapist or other criminal to the streets

and to the environment which produced hin,

to repeat his crime whenever it pleases

him. As a consequence, there will not be

a gain, but a loss, in human dignity. The

real concern is not the unfortunate

consequences of this new decision on the

criminal law as an abstract, disembodied

series of authoritative proscriptions, but

the impact on those who rely on the public

authority for protection and who without

it can only engage in violent self-help

with guns, knives and the help of their

neighbors similarly inclined. There is,

of course, a saving factor: the next

victims are uncertain, unnamed _and

unrepresented in this case.

added.)

(Emphasis

- ll =-

The Court’s role in ensuring that the

prosecutor upholds his end of this societal

contractual relationship, is to conduct a

sentencing proceeding - guilt of the accused

having been established - which results in a

ruling only after thorough and substantive

consideration of victim impact (harm).

ARGUMENT

I. SINCE CRIME VICTIMS HAVE RELINQUISHED

TO THE STATE THEIR RIGHT TO EXACT

INDIVIDUALIZED RETRIBUTION FOR INJURY

CAUSED AT THE HANDS OF A WRONGDOER,

THE STATE HAS A _ FUNDAMENTAL DUTY TO

VINDICATE VICTIMS’ INTEREST.

Woven into the fabric of a free society is

the concept of rights and responsibilities.

It should be axiomatic that everyone has a

-12-

constitutional "right" not to be a victim of

crime. A violation of law is an offense

against society as well as an invasion of the

personal rights of the victim. Perhaps that

is the reason a majority of this Court has

held that “in the administration of criminal

courts may not ignore the concerns

Morris v. Slappy, 461 U.S. 1,

14 (1983). Over one hundred years ago, Chief

justice,

of victims."

Waite,

Justice speaking for a unanimous

Court, observed that: "Allegiance and

protection are...reciprocal obligations. The

for the other;

one is a compensation

allegiance for protection and protection for

Minor v. Happersett, 88 U.S.

allegiance."

162 (1875).

In early times and even more recently (the

American frontier) victims and their families

could practice "clan" or "familial" justice,

- 13 -

resulting in full victim participation and

immediate gratification. However, progress

soon dictated a less random and more

systematic approach to justice. So organized

or “planned" justice (i.e. the duel) became

popular. Again, victim participation and

gratification were quick and sure. See

Gittler, 11 Pepperdine L.Rev. 117, 123

(1984); Aynes, 11 Pepperdine L.Rev. 63, 72

(1984).

Perhaps it was felt that the addition of a

public prosecutor - which came shortly after

the American Revolution - would be the great

equalizer, thereby solving at least a couple

of the principal complaints of both the old

English system of private justice and of the

old West’s system of surefire justice: where

only money or a gun carried clout. See

Gittler, Supra at 125.

- 14 -

Thomas Jefferson wrote:

Whereas, it frequently happens that

wicked and dissolute men, resign

themselves to the dominion of

inordinate passions, commit violations

on the lives, liberties and property

of others, and, the secure employment

of these having induced men to enter

into society, government would be

defective in its purpose were it not

to restrain such criminal acts by

inflicting due punishments on those

who perpetuate then...

“rj . Justice: 2

Critical

See Carrington, Esq.

Conservative Strategy,

Heritage Foundation (1982).

Issues, The

The quid pro quo created when this bargain

was struck did not mean that crime victims

- 15 -

relinquished their right to demand

personalized justice, but rather they agreed

to do it by the rules, in return for the

government’s pledge to make the rules apply

uniformly, thereby ensuring their right to

the safe enjoyment of their families, lives,

liberty, and property. See Aynes, 11

Pepperdine L.Rev. 63, 75 (1984).

This was a fair exchange: that collectively

they could protect one another against the

depredation of the "wicked and dissolute"

more effectively than could one individual’s

——

money or another’s gun.

Progressively,

however, victims have been

edged off stage, or, more accurately, they

have been shoved aside.

What once was a

mutually beneficial relationship, is now only

good for one of the team members. See

- 16 =

Now there is

Gittler, Supra at 131, 133.

"dis-ease" in the land; and rightly so: No

longer do citizens trust that’ the agreement

is being upheld by their government. They

want, and must have, some evidence of good

faith and fair dealing in this so-called

contract.

societal See Aynes, Supra, at 75.

The right to participate at the sentencing

phase (the penalty phase of a capital

offense) seems fair.

At least forty-seven (47) states and the

United States yielded to the

Congress have

public demand for a more meaningful role by

approving laws ensuring that crime victims

can make a Victim Impact Statement at the

Roland, D., Progress

criminal’s sentencing.

in the Victims Movement: No Longer the

"Forgotten Victim", 11 Pepperdine L.Rev. 35,

51 (1989).

-17-

The criminal justice system cannot isolate

itself from the people it was created to

protect. According to Senator Joseph Biden,

Chairman of the United States Senate

Judiciary Committee, in a report to Congress,

on March 12, 1991, the United States of

America is the most violent nation on earth.

This situation is creating an ever growing

class of citizens whose collective voice

should not, and will not, be ignored. The

sentencing authority must not be blocked from

hearing all relevant evidence including

victim harn, thusly recognizing and

validating a continuing faith in this

societal contract between a government and

its people.

The purpose to be served is compelling, and

the duty to implement is no longer optional.

Reference to the victim by the prosecutor

- 18 -

will not suffice. The victim’s own impact

statement during sentencing is the reasonable

A determination of

means of implementation.

reasonableness requires balancing the effect

of the private rights with the public good to

be achieved. 16A 6.3.8. Sec. 442,

Constitutional Law (1984).

ARGUMENT

II. THE PURPOSE OF A SENTENCING HEARING IS TO

BALANCE THE RIGHTS OF THE CONVICTED AGAINST

THE HARM SUFFERED BY THE VICTIM IN ORDER TO

ACHIEVE THE SOCIETAL GOAL OF DETERRENCE AND

FAIRNESS WITHOUT TRANSCENDING THE CONSTRAINTS

OF THE 8TH AMENDMENT.

While it is necessary to keep close watch

over the rights of those accused of crime,

the over-broad holding of Booth and its

- 19 -

progeny subjects victims to constrictions

unsupported by Constitutional principles.

Today juries are already given meticulous

written guidelines when called upon to

address the sentencing alternatives of life

or death. Gregg vy. Georgia 428 U.S. 153

(1976).

Prior to 1972, capital punishment laws

expressly gave juries complete and

unsupervised discretion to impose the death

penalty. The jury was not required to follow

any legal guidelines in making its decision,

and it was not provided with any special

information about the defendant’s background

Or character beyond that offered to support

the defendant’s

innocence. This unbridled

discretion was the United States

McGautha v.

The Court,

upheld by

late as 1971.

California 402 U.S. 183 (1971).

Supreme Court as

- 20 -

however, significantly changed its position

in the landmark case of Furman v. Georgia 408

U.S. 238 (1972). Furman, in effect,

invalidated all death penalty statutes then

in force, and directed that death penalty

statutes be imposed under legislatively

defined standards. The Furman Court held

that the death penalty may not be imposed

under sentencing procedures that create a

substantial risk that the punishment will be

inflicted in an arbitrary or capricious

manner. ld.

In 1976, the Court qualified and refined the

Furman decision in Gregg v. Geo.gia when it

established that all sentencing discretion

should not be eliminated, but that it must be

Gregg, 428 U.S. 153.

As first laid down in Fumman, juries are now

directed and limited.

given carefully crafted instructions within

- 21-

preset

Booth,

guidelines by

and highly scrutinized parameters.

however, goes even beyond those

narrowing justice to that

proverbial filament through which justice for

Snyder v.

Massachusetts, 291 U.S. 97, 122 (1934).

the victim can no longer survive.

Earlier,

the Court in Weems v. United States,

217 U.S. 349 (1910), held that the Eighth

Amendment was not static and concluded that:

(t]he Amendment must draw its meaning

from the evolving standards of decency

that mark the progress of a maturing

society. Id.

And so, using this standard as representative

of a maturing society, we review the

identical crimes of two men stealing loaves

of bread from a shopkeeper. One man steals

- 22 -

the loaf to sell for gambling money; the

other steals the loaf to feed his family.

This "progressive" doctrine, as first

enunciated in Weems, proposes that punishment

should be determined by weighing the factors

of each case, regardless of whether or not

different penalties may result.

Weems, and the case law since that

steadily factored into punishment

However,

time, has

only the mitigating circumstances proposed by

the defendant. This lopsided, "progressive"

theory has completely failed America’s crime

victims. The "decency" that marks’ the

progress of a maturing society should not be

defendant

limited to concerns. True

progressive social enlightenment must mean

something more than mere leniency for

society’s lawbreakers.

- 23 -

The jury needs to hear, to give life to, the

abstract of "society". What better way for

the jury to assess the harm done than through

the voice of the shopkeeper, who suffered the

true loss for each loaf of bread.

The Booth court would have the jury balancing

a fictionalized reification of society

against the defendant who not only is

allowed, but is strongly encouraged to parade

into the courtroom, a crying lover, a young

child, parents and multitudes of friends.

This is not simply tipping the scales but

rather, breaking them; which leads to

leniency not by extenuating circumstances,

but by sheer volume.

The so-called progressive notion of society’s

"maturation" has left a trail of injustices

for victims, whose participation and

cocperation have accounted for the successful

outcome of many cases. Often, victims are

the sole witnesses to the crime and are

therefore indispensable to successful

prosecutions and convictions. An estimated

one-half of all crimes are not reported.

The failure of crime victims to report crimes

or actively cooperate with police and

prosecutors is an alarming trend. Hudson,

Crime Victims and the Criminal Justice

System, 11 Pepperdine L.Rev. 23, 27 (1984).

Congress acknowledged the importance victims

play as witnesses in the criminal court

process when it declared in the Omnibus

Victim and Witness Protection Act of 1982

that, “Without the cooperation of victims

and witnesses the criminal justice system

would: cease to function; yet with few

exceptions these individuals are either

- 25 -

ignored by the criminal justice system or

simply used as tools to identify and punish

offenders." Victim and Witness Protection

Act of 1982, Pub. L. No. 97-291, 96 Stat.

1242 (1982).

Determining a_ sentence by resultant harm can

promote two important societal goals:

victims can give voice to the harm a crime

has visited upon their personal lives, which,

in turn can bring a measure of solace for the

pain suffered. Furthermore, the victin,

representing a microcosm of society, gives

judge and jury a more fair picture of the

potential injury to society, and may thus

share in what sentence

society’s consensus

should be imposed. See Murphey, 51 Univ.

Chi. L.Rev. 1303 (1988).

As Justice Scalia wrote in the dissent in

- 26 -

It seems to me, however -- and, I

think, to most of mankind -- that the

amount of harm one causes does beat

upon the extent of his ““personal

responsibility." We may take away the

license of a driver who goes 60 miles

an hour on a residential street; but

we will put him in jail for

moral

manslaughter ag, though his

guilt is no greater, he is unlucky

enough to kill someone during his

escapade.

It would follow from the holding in Booth,

that contrary to Justice Scalia’s

well-reasoned analysis, punishment tailored

to the moral culpability of the criminal, and

not to the harm exacted by the crime, would

assign equal punishment to the man who

- 27 -

murders and to the man who attempts murder

but fails, since both had the intent to

murder.

>

The proponents of the Booth holding argue

that by allowing victims a voice, our new

justice will be based on a battle of

numbers, as well as victim social status:

that the identical crime committed against a

"popular" victim and against a "homeless

orphan" will lead to society judging not the

crime committed but rather the person against

whom it is committed. The solution, however,

is not to stifle the voices of victims whose

need is great to give sorrow words.

Victims speaking of harm done, of the effect

the crime has had on their lives, do not

claim: that one life is more valued than

another, but rather bring into sharp focus

- 28 =

jury, and society, the

of what the aftermath of violent

for the judge, the

realities

crime exacts on each of these essential parts

of life in a free society.

To muzzle all victims at capital sentencing

hearings for fear that some may be more

persuasive or express more eloquently the

horrors of crime, is the truly arbitrary and

capricious decision.

ARGUMENT

IiIl. THE RIGHT OF CRIME VICTIMS TO JURY

CONSIDERATION OF VICTIM IMPACT

STATEMENTS OR COMMENT BY THE

PROSECUTOR CONCERNING VICTIM HARM IN

THE PENALTY/SENTENCING PHASE OF A

CAPITAL CASE, WILL BE RESOLVED BY

RECOGNITION OF VICTIMS’ LEGITIMATE

- 29 -

CLAIM TO PARTY STATUS (STANDING)

{INDEPENDENT FROM THAT OF THE PUBLIC

PROSECUTOR FOR THIS PURPOSE.

In his dissent in Booth, Justice Scalia

wrote,

Many citizens have found one-sided,

and hence, unjust the criminal trial

in which a parade of experiences that

Grove the defendant to commit his

crime, with no one to lay before the

- 30 -

elsewhere. To require, as we have,

that all mitigating factors which

render capital punishment a harsh

penalty in the particular case be

placed before the sentencing

authority, while simultaneously

requiring, as we do today, that

evidence of much of the human

suffering the defendant has inflicted

be suppressed is in effect to

prescribe a debate on the

appropriateness of the capital penalty

with one side muted. Jf that penalty

is __constitutional, as we have

the particular case to be heard.

Booth at 520 (Scalia, J. dissenting).

Emphasis added.

- 31 -

Elsewhere in the record of the case before

this Court, amici for both the Congress of

the United States and for the United States

Department of Justice have presented

arguments calling upon the Court to heed

their strong and persuasive intent in passing

laws at the Federal level which say, in sum:

"We meant to put crime victims into the

courtroom to be heard at all sentencing

hearings in criminal cases."

It would appear that Justice Scalia finds no

Constitutional impediment to accepting the

position taken by the United States Congress

and the Department of Justice: that to

remedy the imbalance suffered by the victims,

and in order to "lay before the sentencing

authority the full realty of human suffering

the defendant has produced", victim impact

should be measured alongside any mitigation

- 32 -

of defendant blame.

The question then must be asked: if victim

impact evidence in capital criminal

sentencing hearings (penalty phase) is

lawful, then does the victim have at least

limited standing to be heard for purposes of

victim impact evidence,

determining the

separate and apart from the prosecutor.

While prosecutor and victim issues may seldom

be at odds for the purpose herein discussed,

without a determination about victim

standing, the victim remains a nonentity,

subject to being used, accorded access only

when it suits the prosecutor.

The Canon of Ethics forbids attorneys to

represent more than one client whose

interests may produce a conflict in

representation. Model Code Of Professional

- 33 -

Responsibility EC 5-15 (1980). The Canon

goes on to say that doubts should be resolved

against the propriety of the eepresentation.

It is settled law that the public prosecutor

represents the state specifically, and the

victim only very generally. See Aynes, Supra

at 73 (1984).

Over at least the last fifty years,

prosecutors have appeared at hearings brought

by defendants, requesting orders from a court

for such things as psychological evaluations

(Ballard v. Superior Court, 64 Cal. 2d 159,

1966) (People v.

Bynon, 146 Cal App. 2d 7, 1956); as well as

and physical examinations

exclusion from courtrooms and appearances at

lineups. See Aynes, Supra at 73 (1984).

There is now a growing trend to grant victims

- 34 -

and to be heard, in

the right to appear,

person or by counsel, at various criminal

proceedings, (e.g. California Penal Code, Sec.

1191.1). Roland, D., Progress in the Victim

Reform Movement: No Longer the "Forgotten

Victim", 17 Pepperdine L. Rev., 35, 38 ~- 42,

50 - 56 (1989). There is also a recognition

that the law does not authorize prosecutors

to represent victims at such hearings.

People _v. Bullen, 204

OQziel v. Superior Court, 223 Cal App

3d. 1284 (1990).

Cal App 3d. 22, 25

(1988),

Amici suggest that recognition by the Court

of crime victims’ independent and legitimate

status as parties for the limited purpose

herein proposed, will obviate the need to

weigh the propriety of the use of victim

impact evidence in the context herein argued.

- 35 -

CONCLUSION

The police power imposes on the state the

duty to protect the lives of its residents.

(16A Am Jur.2d Constitutional Law Sec. 363

(1979) .] The police power is founded on the

duty of the state to protect its people and

to provide It is the

for their safety.

foundation upon which our social system rests

16A Grd eB Constitutional Law Sec. 433

(1984).

The punishment to be meted out must be

determined by balancing the harm actually

experienced by a crime victim, against the

permissible and carefully scrutinized

defendant circumstances. The victim’s voice

gives life to the

impact of the crime and

justly reflects not only vindication for the

individual victim, but for the society it

represents as well.

Crime victims should be recognized as parties

with standing in all criminal sentencing

hearings, including those in capital cases.

Any potential for arbitrariness can

screened by the court,

set out in Gregg v.-

with those

effectively be

following guidelines

Georgia,

promulgated by each state.

and read together

Respectfully submitted,

Auda [ee basnd

I/

Judith Rowland, Esq.

Crime Victims Legal Clinic

1221 22nd Street

San Diego, California 92102

- 37 -