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On November 7th the people of Ohio decisively shot down contentious Issue 2. However, the lesser-publicized ballot Issue 1 passed with flying colors due in part to the emotional appeals made by celebrity Kelsey Grammer. This ballot issue proposed a type of Marsy’s law that provides many new protections to crime victims that will be written into the state’s constitution.

Sounds pretty good, right? Not so fast.

There are lots of implications to the sweeping changes made by Issue 1’s passage and it was contested by the ACLU, the Ohio public defender, and the state prosecuting attorneys’ association. To learn more about the concerns of the legal community, I spoke with Mark Collins a practicing Columbus defense attorney, graduate of Capital Law School, and member of the Board of Governors of the Columbus Bar Association.

What Does Issue 1 Promise?

Issue 1 replaces the previously existing victim notification laws in Ohio.

It amends the Ohio constitution to afford the following guarantees to victims of crimes in the state:

  • The right to be notified about and present at all proceedings
  • The right to the prompt conclusion of the case (for the victim)
  • The right to reasonable protection from the accused
  • The right to be notified about release or escape of the accused
  • The right to refuse an interview or deposition at the request of the accused
  • The right to receive restitution from the individual who committed the criminal offense

That all sounds pretty good in theory, so…

What’s Wrong With Issue 1?

The main concern seems to be the shortsightedness of the law. The full impacts weren’t necessarily taken into consideration before it passed, so there is some confusion among the legal community about how these changes will be implemented once the law goes into effect in mid-January. The potential problems with the law are manifold. First being the idea of “if it’s not broken, don’t fix it.” Mr. Collins doesn’t doubt that there are places that could definitely benefit from a Marsy’s law: “ You know it is a good cause. In the states where it evolved and how it evolved, they didn’t have a victim’s bill in place like we did ours. This wasn’t necessary for the state of Ohio.

Not Broken, Don’t fix it

Unlike the laws that let Kelsey Grammer’s father’s killer back out on the streets without notifying the family, Ohio’s notification laws were functioning quite well before this initiative was raised.

Mr. Collins explained: “They sell it as a natural extension of the law that we already have. But it’s not, the law we had prior to this […] it worked. The notification aspect worked. […] Victims could get information 24 hours a day seven days a week.”

Who is the Victim?

Furthermore, the law guarantees lots of new or extended protections to victims without clarifying exactly who qualifies as a victim. Since victims now have rights, it is important to know exactly who the victims are so that each of those people can obtain representation, be appropriately notified, etc. This opens the door quite wide, Mr. Collins explained it to me this way: “ a victim means either a victim or another person who’s been harmed as a proximate result of the action. So that means if the victim is deceased it could be their family members. So again take it to the next level. Does that mean mom and dad each get their own attorney does another relative get an attorney? You know, who are the actual victims in that situation?”

Additionally, Mr. Collins explained that unlike the right to a lawyer, of which you’re informed of when you’re Mirandized as an accused person, there is no funding attached to this legislation to provide representation for the victims: “So now the victims and their families have due process rights. So what that means is A: they have the right to a lawful representative. But the reality is, unless they’re going to provide funding for that, that means that wealthy people or affluent people who are victims can have a lawful representative with them. However if you’re poor or indigent. There’s no provision for you.”

Impact on Discovery

Discovery is the process through which defense attorneys work to uncover potentially exculpatory evidence. Sometimes this requires requesting or subpoenaing information, documents, or other materials from the victim or prosecution team. Under the new law, the victim can refuse to release information to the defense team — thereby inhibiting discovery. And now that the law is in place, they’re theoretically free to take that action– without a judge’s review.  Mr. Collins explains it like this:

“Before this election, if I subpoenaed a victim’s, let’s say phone or computer, and the prosecutor felt it was infringement or invasion of privacy. What would happen is the prosecutor would file a motion to quash the subpoena. We would then have a hearing and the judge would decide what to do. That’s a proper forum to protect my client’s due process rights. Instead, this allows the victim or victim’s lawful representatives to say ‘no’. They’re not going to comply they’re not going to turn stuff over.”

 

Impact on Speedy Trial

Introducing these provisions also has the legal community worried about the defendant’s right to a speedy trial, because the timing impact here is hard to estimate. First, you’re increasing the number of people who are entitled to representation in the case, as we discussed earlier with victim identification. So now there could be many people involved in the process. Additionally, you’re interjecting the victim’s right to a swift resolution of the case… but which right gets priority? The victim’s right to a swift resolution or the defendant’s right to a speedy trial?

Mr. Collins explained this confusing situation with the following scenario:

“They want the victims to be free from unreasonable delay in a prompt conclusion of the case. OK. If you asked a hundred criminal defense attorneys and 100 prosecutors in the state of Ohio what a prompt conclusion of the cases you would get nine million different answers based on the type of case the type of evidence where the witnesses are whether or not it’s you know there’s a DNA testing blood testing. So what this allows is the victim and their lawful representative can object to a continuance. OK. Now the way the law is written is then it gives the victim an appellate right immediately. And what I mean by that is if the judge says no I’m going to continue this, like the defense or the prosecution wants […] and the victim disagrees, they now can go to the appellate court. And then the appellate court has to rule. So what do we do with the criminal case? Are we on hold? Is my defendant’s right to a speedy trial on hold?”

No Actual Recourse and No Funding

As you can see there are lots of interesting scenarios that people in the legal community are worried about. Overall, Mr. Collins understands that the victim’s rights causes are important, but disagrees that Ohio needed new legislation. Besides the lack of funding for the law, the kicker seems to be that there is no actual recourse for the victims if these laws are not adhered to. The state has immunity– if someone forgets to notify the victim, or neglects to inform the victim of the proceedings, or to follow any of these new rules… there’s nothing the victim can do. So the law “has no teeth” as Mr. Collins described it.

Overall, Mr. Collins described his concerns this way “the version that was passed in Ohio interjects the victim’s bill of rights, so to speak, into every process of the criminal justice system in every stage. And what that will do is that will create higher costs. It will create delays in the system and it will create more injustice for those accused than it will help the victim and the victim’s families because again there’s no remedy for the victim’s families.”

Photo by Samuel Zeller on Unsplash