“The friend who can be silent with us in a moment of despair or confusion, who can stay with us in an hour of grief and bereavement, who can tolerate not knowing, not curing, not healing and face with us the reality of our powerlessness, that is a friend who cares.”
— Henri Nouwen, Dutch priest and author
Fifty years ago, the United States Supreme Court ruled that a criminal defendant facing jail time was entitled to representation in court. Having an attorney was no luxury because the system was just too complex. “Even the intelligent and educated layman has small and sometimes no skill in the science of law,” the court concluded. “He requires the guiding hand of counsel at every step.”
More than 40 years would pass before we would turn the same attention to those who were the survivors of crime.
April 8-14 is National Crime Victim Rights Week. The work of victims advocates and the operation of our courts are now governed by several provisions of Ohio law, and a newly passed state constitutional amendment that relate specifically to victims.
Even before the passage of Marsy’s Law last November, Ohio was among the most comprehensive in the nation when it came to victims’ rights in the legal process. Law enforcement agencies, prosecutors and courts were required to provide notice to victims when a defendant is arrested, charged or scheduled to appear in court. During the court process, victims not only had the right to be present, but also to have a victim advocate appear with them or appear in their place to observe and monitor the proceedings.
Previous Ohio law also granted victims several opportunities for input as the process moved forward. The law provided that if a prosecutor intended to amend or dismiss a charge or to agree to a negotiated plea, the prosecutor should confer with the victim beforehand, “to the extent practicable.” In juvenile cases where the child’s charge was to be handled through pretrial diversion, the court was required to notify the victim of that fact.
If the defendant was convicted or if the juvenile was adjudicated delinquent, then the victim had to be afforded an opportunity to make a written victim impact statement or submit to the court a written statement prior to sentencing or disposition. The victim was also permitted to make a statement to a person preparing what is called a presentence investigation — a report prepared in order to give the court more information about the defendant and the defendant’s history.
Once a defendant had been sentenced, the victim was entitled to notice of post-conviction proceedings in the case. That included notice of any appeals filed and hearing on those appeals, notice of requests for early release, and notice of the actual date of release. If the defendant asked for a release and a hearing was to be held on that request, the victim was again permitted to be present for the hearing on the release request and permitted to make a statement.
Marsy’s Law continued all of those rights, and now enshrined them in the state Constitution. It also expanded those rights, allowing a victim to intervene in a case to assert their rights, mandating that a victim be permitted to speak to the court on the issue of a plea bargain or reduction of a charge, and creating a new right on the part of a victim to refuse to be interviewed under certain circumstances. The amendment also provides a clear definition of who is a victim and provides new requirements as to the enforcement of restitution orders.
Delaware County is fortunate to have several extremely dedicated victim advocates. They operate in each of our courts and through the offices of County Prosecutor Carol O’Brien and County Sheriff Russ Martin. These advocates, in conjunction with local agencies like HelpLine and Turning Point, give a voice to those who have persevered through crime.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.