November 14, 2023

Legitimizing Victim Counsel in 2023

By Kazi Houston, MSW, JD, Legal Director, Emily Tofte Nestaval, MSW, Executive Director
Rocky Mountain Victim Law Center

Rocky Mountain Victim Law Center (RMvlc) has a mission to elevate victims’ voices, champion their rights, and transform the systems impacting them by providing free legal services to victims of crime across Colorado. Since incorporation in 2009, RMvlc has represented victims in criminal cases across the state, litigating issues related to victim privacy, the right to be present and heard, the right to restitution, and more. As counsel for victims in cases, we work hard to build and maintain strong collaborative relationships with prosecutors, and often work together to identify the unique victims’ rights and victim privacy issues we can litigate most effectively.

Recently, and for the first time in the 14-year history of the organization, the role of RMvlc to act as victim counsel and our ability to litigate victims’ rights issues was challenged by the prosecution. It was a jarring experience after many years of collaboration and successful partnership with that prosecutor’s office, but it also created an opportunity to fully define our role as victim counsel and lay out the legal arguments that make it both possible and essential. With a short timeline, we were able to connect with NCVLI’s invaluable experts, who helped us think through our response and provided helpful sample motions.

Colorado has had a robust Victim Rights Act (VRA) since it became part of our state Constitution in 1992. Since the enabling legislation went into effect in 1993, the VRA has been updated multiple times to ensure the rights of victims evolve along with other changes in the legal system. As victim counsel we generally operate from a largely unarticulated belief that victims’ rights are important, and fighting for them is appropriate and right. However, the exercise of having to more fully explain why that is the case was useful.

It is not uncommon, after RMvlc enters a case, to have a candid conversation with the prosecution to explain, no—we are not the victim rights complaint people, we are not trying to sue anyone, and we are not trying to encumber prosecutorial authority and discretion. Our team spends a great deal of time, in cases, and through trainings and collaborative partnerships, talking about how ensuring victims have a means to protect their own interests improves their participation in and satisfaction with the legal system. Most often, this results in strong collaborative partnerships, even where our client’s position differs from the prosecution’s.

RMvlc also has a keen focus on providing victim-centered and trauma-informed legal services. An additional complexity in this case was maintaining the positive relationship between the survivor and the prosecution team. While RMvlc viewed the challenge to our representation as an existential threat to all victims and their rights throughout Colorado, the survivor wanted nothing but harmony between our team and the prosecution, which is a vital part of feeling supported, heard, and respected as they participate in the criminal legal system. RMvlc’s team of non-attorney advocates and trauma experts played a significant role in strategizing how RMvlc could fiercely refute the motion to strike, while also maintaining the victims wishes. Ultimately, RMvlc explained to the survivor the significance of the prosecution’s filing, the importance of RMvlc responding to it, and commiserated with the survivor the injustice of it being her case in which the prosecution brought this motion, and that sometimes lawyers just have to litigate things. 

Striking a nuanced tone of maintaining the prosecution was still on her side, but didn’t want her to be able to assert her rights was complicated.

RMvlc developed clear arguments that victims are proper participants in criminal proceedings, with specific legal interests distinct from parties in a case. Drawing on a small body of Colorado VRA case law, we were also able to point to the philosophical underpinnings of those decisions, which consistently validate victims’ rights, and those rights should be upheld.

Recently the Colorado Supreme Court reviewed a case related to an un-subpoenaed victim being ordered to testify at a preliminary hearing when they exercised their right to be present. The trial court had relied on a pre-VRA case to allow this, but on an interlocutory appeal the Supreme Court noted the VRA was a “game changer” and a “sea change” in Colorado, and to rely on the pre-VRA case “would be to undercut the right to attend critical stages of proceedings under the VRA”, and “would be inconsistent with the constitutional and statutory goal of honoring and protecting victims”. People v. Platteel, 528 P.3d 176 (Colo. 2023). This strong affirmation of the need to address legal decisions and case law through the lens of the later enacted VRA is an important addition to Colorado’s body of law.

It was also uniquely satisfying to be able to lay out Constitutional and due process arguments drawing on century-old principles related to standing and access to legal protection. The unexpected opportunity to quote Marbury v. Madison provided very useful framing for the importance of remedies in making rights meaningful.

Concerns raised by the prosecution and defense in our case focused on the vague prospect that RMvlc might file something related to an evidentiary issue that could adversely affect the pending criminal case. Despite our repeated verbal and written assurances that our role is focused on the rights of the victim, and that the court is the gatekeeper and decider of such matters, the role of victim counsel continued to pose an unarticulated threat to everyone involved in the case. Ultimately the Court ruled that, because the victim is not a party to the case, RMvlc cannot file “motions”, but we can file notices to inform the court of concerns related to victims’ rights, and the position of the victim on issues.

The experience of having to justify the very existence of victim counsel was new for us, in a state where victims’ rights have not had to face many of the challenges experienced in other states. It was also a good reminder that, no matter how robust your VRA statutes are, there is always more work to do. Colorado doesn’t have explicit standing for victims related to enforcement of their VRA rights, and the existing compliance process does nothing to change the outcome of a case or remedy rights violations when they occur. Relying solely on past experiences, collaborative relationships, and trust to ensure victims have robust rights in the future is risky. To truly legitimize victims’ rights, and the role of victim counsel, efforts need to extend beyond work in individual cases, to ensure the laws, policies, and systems are in place to make victims’ rights meaningful. Because, as Justice Marshall quoted, “every right, when withheld, must have a remedy, and every injury its proper redress.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (Quoting with approval from Blackstone’s commentaries).

The work continues in 2023.