March 28, 2023
Vigilance and tenacity are our watchwords victims’ rights.
Meg Garvin, MA, JD, Mst
The federal Crime Victims’ Rights Act, 18 USC 3771 (CVRA), became law in 2004. Among the things this landmark legislation does – it provides explicit right and standing to victims. It provides, “The crime victim or the crime victim’s lawful representative, and the attorney for the Government may assert the rights” in the district court, and if the right is denied appellate review may be sought through a petition for writ of mandamus.
Shortly after passage of the CVRA, courts began to recognize that the CVRA made explicit victim standing independent from the prosecutor. See, e.g., United States v. Turner, 367 F. Supp. 2d 319, 322 (E.D.N.Y. 2005) (citing the CVRA, and providing that “the CVRA gives crime victims direct standing to vindicate their procedural and substantive rights in criminal cases independently of prosecutors”).
So how do victims or their lawful representatives (including their legal counsel) assert rights in the district court?
Federal courts have recognized that a starting point can be victims’ counsel filing what is known as a “notice of appearance” (NOA) in the federal district court. See, e.g., United States v. Mahon, No. CR 09-712-PHX-DGC, 2010 WL 94247 (D. Ariz. Jan. 5, 2010) (slip copy) (observing that filing a notice of appearance is a reasonable procedure for receiving copies of filings and ensuring the protection of a victim’s rights). In addition, victim counsel also routinely file motions in district courts in order to assert rights (e.g., motion to proceed by pseudonym, motion to assert right not to be excluded, motion asserting right to be heard). .
Sadly, just this past year an experienced victims’ rights attorney representing trafficking victims in the federal Central District of California sought to file a notice of appearance and motions to assert rights. She was met with opposition and confusion from the clerk of court, the court, and the parties. They expressed conflation of the legal concepts of standing and party status such that the victim attorney had to educate everyone that neither the filing of a NOA nor motions converts a victim into a party in the case.
When it came to docketing the filings there was also confusion regarding how to record those in PACER (the federal docketing system) since the database was not configured with a dedicated place for “victim counsel”. It took more than six months of advocacy–ranging from informal persuasion to litigation–for her to ultimately secure a court order recognizing the victims’ independent standing to appear before the court and file documents in the case.
While the CVRA’s words should have meant it didn’t take so much to secure this victory, it took tenacity and vigilance to ensure that rights passed into law translated into practice in this case. But there are lessons beyond this case. Nationally we need to normalize victim counsel presence in courtrooms and update court databases so that counsel participation is structurally normalized.