Donate

What does a “Victims’ Rights Attorney” do? (Q&A Part Two)

by | Jan 14, 2025 | Rights & Remedies | 0 comments

January 13, 2025

What does a “Victims’ Rights Attorney” do?

A Q&A with National Experts: Part Two

By: Meg Garvin, MA, JD, Mst. Executive Director, NCVLI

Despite the fact that crime victims’ rights laws have been in place for decades, many criminal justice practitioners and individuals involved in the system—both victims and defendants—have never observed a victims’ rights attorney in action.  This raises a common question: what does it look like when a crime victim is represented by independent counsel during a criminal case?

While the day-to-day work of a victims’ rights attorney varies, there are consistent themes across jurisdictions. To shed light on this practice, NCVLI conducted interviews in fall 2024 with three practitioners from different jurisdictions.  Part Two of their insights are shared below.

__

 

Meg Garvin: What is the biggest misperception about your practice held by system actors (e.g., prosecution, defense, court) that you have to overcome? How do you overcome it?

Elizabeth Well: I believe we have fully overcome this misperception at this point, but originally, the biggest misperception was that our role would overlap or question the role of prosecutors or law enforcement. Throughout the years, we have demonstrated through outreach, training, co-counseling, and providing technical assistance that we can be an invaluable resource to prosecutors and law enforcement. Today, the vast majority of technical assistance and support I provide is to either prosecutors or to prosecution-based victim advocates. In many cases, I work side-by-side with prosecutors to pursue the same goals.

Colleen Clase: Because Arizona has had victims’ rights in our state constitution since shortly after the 1990 general election, victims’ rights practice seems to be generally accepted. This is especially the case in Maricopa County (Phoenix), AZ. However, there are still instances where courts, prosecution, defense, etc. do not think that a victim’s attorney may appear, be in the well, file pleadings in the criminal case, or receive pleadings in the criminal case.  We have tried to overcome some of these misconceptions in our notice of appearance. We cite the specific provisions related to service, notice, and distribution of court minute entries, and expressly specify how we want to be served with pleadings, how we want to receive the mandated notifications, and how we want to receive the court’s minute entries. When an actor does not accept what we can do as a victim attorney, we make sure to make a clear record in the trial court and then seek appellate relief. We have gotten published decisions from our Court of Appeals and our State Supreme Court clarifying. In the last couple of years, we have worked, against great opposition, to amend Arizona’s  Rules of Criminal Procedure to integrate victim’s rights. Another misconception that I see is that prosecutors and defense attorneys sometimes do not understand the duty of confidentiality that we as attorneys owe to victims as our clients and that the client directs the representation. 

Rosemary Brewer: We’ve repeatedly had to argue that victims do have standing to file motions after defense attorneys have filed motions to strike our pleadings. This seems to be cyclical – it goes away for a while and then starts up again. Defense attorneys clearly believe that any time a victim is heard – even at sentencing – it is impeding the rights of the defendant in some way. When I started doing this work I think prosecutors were worried that victims’ attorneys would interfere in the case, make it more difficult to communicate with victims, and slow the process down. Through training, communication, and outreach, I believe we have mostly overcome this misperception. I work regularly with prosecutors in the state, provide technical assistance and training, and give prosecutors motions to file on behalf of victims. Additionally, we are able to step in and file motions that prosecutors may not have the time or expertise to file, such as motions opposing pretrial discovery. We have developed a good relationship with nearly every prosecutor’s office in the state through these efforts and I don’t believe they see us as “interfering.” 

__

Meg Garvin: When someone says to you, “The victim doesn’t need their own lawyer, they have the prosecutor” or “When the victim has a lawyer it tips the scales to two vs. one against the defendant,” what do you say?

Elizabeth Well: The prosecutor’s ethical obligations lie with the people of the state of Ohio generally. Oftentimes, the victim and prosecutor may have the same goals, but on occasion, they do not. I find that prosecutors are often hesitant to assist victims with privacy and restitution issues, especially because the prosecutors feel this comes too close to representing the victim directly. We fill those gaps. However, when prosecutors do want to take on victims’ rights cases, they almost always reach out for technical assistance and amicus support. In a similar vein, characterizing victims’ rights attorneys as an arm of the prosecution is inaccurate. Victims are separate actors with independent participatory status. While they may often be on the same page with the prosecutors, this is certainly not always the case.

Colleen Clase: The State does not represent the victim. At the victim’s request, the state may assert rights, but the victim is not the prosecutor’s client. The State has a dual role in seeking justice and also ensuring the defendant gets a fair trial, etc. There are times when the victim’s desires are not aligned with the State’s. We see this with trial continuances, plea offers that victims oppose, and even restitution.  A prosecutor may want to cap restitution or doesn’t agree that the victim is entitled to what they are seeking. In those instances, where the victim and State are in conflict, AZ law requires that the victim is advised they have a right to counsel. 

Rosemary Brewer: It’s clear that the prosecutor represents the interests of the people of the state, not the individual victim. Victims’ interests do not always align with prosecutors’ and sometimes having a victims’ attorney can help bridge communication issues the prosecutor may have with the victim.  Some  prosecutors are reluctant to file motions that protect victim privacy, like motions to quash subpoenas, because they worry they will be seen as the victim’s attorney.  It can be critical for victims to have attorneys in these situations to protect their rights because there is simply no one else to do it. Also, prosecutors are often the ones who violate a victim’s right, like the right to be heard at sentencing. Most prosecutors may know they violated a right but do not want to file a claim of violation on themselves – so they refer the victim to us. In terms of tipping the scales, the state, the defendant, and the victim all have individual rights in criminal proceedings, and attorneys should be available to all three to protect those rights. 

__

Meg Garvin: Do you always agree with the prosecution/state?  Can you share an example of when you disagreed or even a time when you agreed with defense or their position?

Elizabeth Well: We certainly do not always agree with the state. A current case I have provides a great example. We have a client whose medical records were sought by the defense. The state filed motions to quash the defense subpoenas without asking the victim her position. Interestingly, the victim wants to turn over her records. When we were brought on by the victim (through a referral from the state), I contacted the state and informed them that the victim wanted to comply with the subpoena. I contacted the defense attorney and explained that I would facilitate the defense receiving the records but I would like to review the records first to ensure there is nothing additional/unexpected that will be turned over and the defense agreed. The state maintains some concerns about the release of the records but understands that it is the victim’s privacy right and her decision.

Colleen Clase: Generally, victims are aligned with the State in that the defendant should be held accountable. There are times when the views of the victim are different. The State may want to make a plea offer for various reasons and the victim wants the case to proceed to trial. In one case that was being prosecuted as a death penalty case, the defense made a natural life plea offer. The victim, even though he supported the death penalty, wanted the State to accept the defense offer because he wanted finality or a close to the criminal proceedings. The state wanted to proceed with a death penalty prosecution. In other instances, victims may take a position on an issue and preserve that issue for appellate review. I’ve been involved in a number of cases where the State thought the victim should just turn their records over or submit to a defense interview instead of risking a continuance of trial while victims’ rights issues were litigated in our appellate court. Both of these instances resulted in favorable outcomes for the victims. 

Rosemary Brewer: We do not always agree with the state. We had a case recently where a domestic violence victim was very afraid to come to court to testify in front of her abuser. The prosecutor threatened to obtain a material witness warrant to force the victim to appear in court. We were able to work with the prosecutor before a warrant was issued to ensure conditions were in place that would make the victim feel that she would be safe if she came to court. The victim was able to testify at trial and the defendant was convicted. 

__

Meg Garvin: If you could successfully secure one binding precedent in your jurisdiction that would prevent you from having to litigate an issue again what would that precedent say/be?

Elizabeth Well: The right to delayed appeals for victims.

Colleen Clase: Speedy trial and prompt and final conclusion after conviction and sentence, especially in capital cases that take 7-10 years to get to trial in Maricopa County and 20-plus years of appeals after conviction and sentence. Courts are tolerating defense delays at the expense of victims’ emotional well being. 

Rosemary Brewer: Victim standing to oppose discovery requests by the defense.

__

Meg Garvin: What is a success you have had as a victims’ rights attorney that you want to share?  

Elizabeth Well: One of my favorite cases relates to a defense motion to access the home of the two victims of felonious assault and attempted murder. This case was originally referred by a very large prosecutor’s office. We worked very closely with the prosecutors to challenge a court order allowing the defendant and her attorneys to enter the victims’ home without their consent. Ultimately, not only did we get a great outcome wherein the appeals court held that the defendant had no right to enter the victim’s home, along the way, we also got a decision from the Ohio Supreme Court that clearly stated that victims have the right to appeal violations of their rights.

Colleen Clase: As a newer attorney, losing on a victims’ rights issue in the trial court felt devastating, like an uphill battle. Now, I look at it as an opportunity to get the issue in front of our appellate courts. Our appellate courts have upheld victims’ rights and when required, the courts have departed from previous precedent. Two Arizona Supreme Court cases: EH v. Slayton II, in 2019 the Arizona Supreme Court overruled some of their own decisions from the mid-1980s that predated the Victims’ Bill of Rights and required restitution caps in plea agreements. The other from just this year, Gilpin v. Harris, the Arizona Supreme Court overruled a 24 year old Court of Appeals decision that held that victims were not entitled to restitution in cases where a defendant is adjudicated not guilty except insane. 

Rosemary Brewer: Recently we filed an amicus brief with the Oregon Supreme Court regarding the issue of advocate-victim privilege. The defense filed a motion in the trial court seeking the records of a domestic violence service provider concerning the victim. Oregon has advocate-victim privilege with one narrow exception, which is if the victim is suing the service provider. The court ordered the service provider to turn over the records (or just copy the information and provide it to the defense, which the court held would not be a “record”). The service provider appealed, and we filed an amicus brief arguing that advocate-victim privilege is critical not only to survivor privacy but also to encourage survivors to seek services and report abuse. The Supreme Court overturned the court’s decision, protecting the victim records, upholding advocate privilege, and agreeing with the reasoning in our brief.   

Sometimes success is not necessarily a clear-cut victory for a victim, but is instead ensuring that the victim is able to assert their rights. For example, I represented a victim recently in a hearing regarding pretrial release of a defendant. The defendant had been released with no notice to the victim, despite the statute requiring victim input and notice prior to release. I asked the prosecutor to file a motion requesting a new release hearing, which they did (as required by statute), and the hearing was scheduled at a time when the victim could appear. The victim was able to assert her right to be present and to be heard. The court considered the victim’s requests, and ultimately, the defendant was still released. But what mattered to the victim was that she was able to be heard by the court concerning her safety and she felt that the court took her opinions seriously. Though she would have preferred the defendant stay in custody, having the court listen to her made her feel that she did have a meaningful role in the system, and it also established a better relationship with the prosecutor on the case, who from that point on did a better job communicating with her.

__

Meg Garvin: Anything else would you like to share with those who are just learning about the role of a victims’ rights attorney?

Elizabeth Well: Victims’ rights attorneys are a critical part of meaningful victims’ services in a state. We have the discrete and limited role in criminal cases of protecting victims’ rights. We are very often an invaluable resource for training, technical assistance, co-counseling, and amicus support for criminal justice system officials. And finally, protection of victims’ rights has demonstrably positive impacts on victims themselves and crime reporting–both of which are critical to the functioning of our criminal justice system.

Colleen Clase: This is geared more toward attorneys about VR in general…victims’ rights are part of Arizona’s constitution. As attorneys, our oath of admission requires that we will support the constitution and laws of the US and Arizona. Regardless of one’s role in the criminal justice system, the oath requires that victims’ rights are supported and upheld. All actors in the criminal justice system should be informed of victims’ rights and respect victims’ rights. It is our ethical duty.  As far as the role of victims’ rights attorneys, we also have a client. The same ethical rules that apply to other attorneys apply to us. I don’t know how many times I’ve heard the defense say on the record that they aren’t sure what duty I think I have to the victim. I owe the same duties to my client that they owe to theirs. We aren’t here to help the prosecutor or to take over for the prosecutor either as we are often accused of doing by the defense bar. 

Rosemary Brewer: Victims’ rights is a challenging but rewarding area of the law.  We provide limited  representation to victims to protect their rights, but what we are hopefully doing is lowering barriers to accessing justice. If we are successful, we think we improve what is likely one of the most traumatic experiences of a person’s life. If we can help a victim feel that they truly had a meaningful role in the system, regardless of the outcome, then they will be more likely to engage in the criminal justice system in the future.

__

 

In Part Two, our exclusive Q&A with national experts tackled some complex issues and misconceptions in the field, and our experts shared stories of real-world successes that have made a difference. Part One of the Q&A, which offers high-level a glimpse into the world of victims’ rights attorneys, can be read here. https://ncvli.org/what-does-a-victims-rights-attorney-do-qa-part-one/