The Importance of Timing in Victims’ Rights

By: Meg Garvin, MA, JD, MsT

The Ohio Court of Appeals’ decision last week in State v. Mallory, 2025-Ohio-5064 (Ohio Ct. App. 2d Dist. Nov. 6, 2025), is the latest reminder that well-timed legal advocacy is critical to meaningful victims’ rights.

In Mallory, the defendant stole the victim’s vehicle and led the police on a high-speed chase, eventually losing control of the vehicle and crashing it.

Initially, the defendant pleaded not guilty, but eventually negotiated a plea agreement with the state. At the change of plea hearing, the victim was present; the prosecutor even acknowledged the victim’s presence and the intent to seek restitution. Despite this, the trial court accepted the plea without hearing from the victim. The trial court deferred the sentencing.

In the time between this hearing and when sentencing would happen (i.e., before disposition), the victim’s counsel, the Ohio Crime Victim Justice Center, appealed, arguing that failure to give the victim a chance to be heard violated Ohio’s victims’ rights.

The appellate court agreed; it remanded the case for a new plea hearing, noting that at that hearing the victim “must be given a chance to be heard, and the issue of restitution to [to the victim] must be addressed and incorporated into a new plea agreement.”

The lessons from this case are many, but a key one is the importance of timing.

A victim can be present at proceedings but still silenced. A victim can be heard after critical decisions have been made, such that their voice carries no weight. Victims’ rights require more. Victims must be heard when their voices can still matter; before the window for meaningful remedy closes.

What was the critical timing moment in Mallory? The space between plea and sentencing. When these two proceedings are rushed together, victims are often denied a real opportunity to be heard. Once a plea is entered and a sentence is imposed, such that disposition or conviction has been finalized, double jeopardy can make it more difficult to challenge violations of victims’ rights.

By contrast, when there is time between the plea and sentencing, victims and their counsel have the opportunity to seek enforcement before the judgment is locked in. That window allows rights to be exercised meaningfully. The Mallory court’s reversal was made possible because the victim had counsel, and that counsel had the time to act.

Timing, in other words, is not just a scheduling issue; it’s a justice issue.

Other cases similarly reveal the importance of timing.

For instance, in State v. Barrett, 350 Or 390 (2011), the Oregon Crime Victims Law Center represented a victim of stalking whose rights to be notified, present, and heard at sentencing were denied. The Oregon Supreme Court vacated the sentence, holding that the trial court’s failure to hear from the victim violated Oregon’s constitutional victims’ rights. Notably, the legal advocacy in Barrett focused not on undoing the plea or conviction but solely on undoing the sentence. This strategic focus ensured the victim’s rights were vindicated without having to confront the challenges of double jeopardy.

The same principle of timing is central in the ongoing federal Boeing criminal case. Families of the 737 MAX crash victims, represented by Professor Paul Cassell, successfully argued that the Department of Justice violated their rights under the federal Crime Victims’ Rights Act (CVRA) by finalizing a deferred prosecution agreement without conferring with them first.

The court agreed, halting the plea process and ensuring victims were heard. While the case is ongoing, a key takeaway – timing was everything. Waiting would have reduced the victims’ voices to mere commentary.

Beyond timing, there is another common thread to these cases–counsel.

In all three cases, Mallory, Barrett, and Boeing, victims were not navigating the system’s timing challenges alone. They had skilled legal counsel focused on victims’ rights. The lawyers timely identified when rights were at risk, acted before remedies were foreclosed, and strategically framed the case to appeals courts.

Notably, both OCVJC and OCVLC were seeded with early funding from NCVLI. NCVLI is fortunate to have a close partnership with counsel in all three cases as part of our effort to ensure that victims across the country have access to independent representation.

Conclusion

State v. Mallory is not just a case; it is the latest call to action. For victims’ rights to truly matter, they must be enforced in real time by lawyers ready to stand beside victims when it counts most, transforming justice from an aspiration into a lived reality.

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