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National Crime Victim Law Institute

New and Noteworthy

Read cases of interest NCVLI follows. Click here for archived cases.

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  • Defendant was convicted of reckless driving, second-degree assault, indecent exposure, and public urination.  Defendant appealed, arguing, inter alia, that the court imposed an improper sentence when it ordered him to pay restitution to the victim’s wife for her lost wages.  Under Maryland law, the court held that restitution may be ordered for lost wages incurred by the victim of the offense but not for lost wages incurred by the spouse of a victim.  The state argued that the court should recharacterize the lost wages incurred by the victim’s wife as “actual medical … expenses or losses” and/or “expenses incurred with rehabilitation,” as the victim’s wife lost her wages while caring for her husband.  The Court of Special Appeals held that the state did not initially seek restitution for the lost wages of the victim’s wife under this theory, and instead categorized the lost wages of both the victim and his wife as separate from medical and rehabilitation expenses.  The appellate court held that “[i]t would not be appropriate … to recast on appeal the State’s request and the circuit court’s characterization of the restitution award.”  Because the award of lost wages incurred by the victim’s wife exceeded the court’s authority under Maryland’s restitution provisions, the order of restitution was vacated with respect to the lost wages of the victim’s wife, and the case was remanded for entry of a corrected restitution award.More >
  • An identity theft victim was notified by the United States government that her identity had been stolen and used to file federal income tax returns for tax years 2012 and 2013.  The investigation of the crime was on-going and no formal charges had yet been brought.  The victim, through written request, asked the government to provide her with information on the crime itself and the status of the investigation.  After the government refused to provide her with the information, the victim filed suit in district court under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, seeking a court order compelling the United States government to turn over the information.  The victim claimed that the government had violated three of her CVRA rights:  to be reasonably protected from the accused; to proceedings free from unreasonable delay; and to be treated with fairness and respect for the victim’s dignity and privacy.  The court rejected each of these claims in turn.More >
  • Attorney Grievance Comm’n v. Smith, — A.3d —, 2015 WL 737412 (Md. Feb. 23, 2015).  The Attorney Grievance Commission (“Commission”), filed a Petition for Disciplinary or Remedial Action against a former assistant state’s attorney (ASA) alleging that he violated Maryland Lawyers’ Rules of Professional Conduct (MLRPC) 1.3 (diligence), 3.3 (candor toward a tribunal), and 8.4(a), (c), and (d) (misconduct) when he failed to communicate at all with the victim or victim’s representative in a child sexual abuse case he prosecuted, which was an evasion of the former ASA’s constitutional and statutory obligations under the state’s victims’ rights laws.  A disciplinary hearing was held and the hearing judge concluded that the former ASA had violated MLRPC 1.3, but had not violated MLRPC 3.3 or 8.4.  The Commission took exception to the hearing judge’s conclusion and appealed.  The Court of Appeals concluded that although the former ASA did not purposefully deprive the child-victim of notice and information, the consistent failure to ensure that the appropriate information and notices were provided to the victim and her foster mother, among other things, was prejudicial to the administration of justice.  More >
  • mes Clark and the Victim Rights Center of Connecticut, Inc., represented the victim in this case, arguing to protect the victim’s rights to protection and privacy during the habeas proceedings.

    Mot. For Protective Orders for the Victim & Mem. of Decision, Annulli v. Warden, No. TSR-CV14-4005806-S (Conn. Super. Ct. Jan. 23, 2015).  Petitioner was convicted of sexual assault and subsequently petitioned for writ of habeas corpus.  During the habeas proceedings, the victim filed a motion for protective order asking the superior court to issue an order precluding petitioner and his agents from approaching the victim or her family and issuing any subpoenas on the victim and her family without prior judicial approval and only after a hearing in which petitioner demonstrated that the information sought was relevant to the claims in his petition.  

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  • Winchell v. Beard, Case No. 34-3014-80001968 (Cal. Super. Ct. Jan. 30, 2015).  The petitioners, relatives of murder victims, petitioned the California Department of Corrections and Rehabilitation (CDCR) to adopt lethal injection regulations that are in compliance with state and federal law, which CDCR denied.  Until such regulations are adopted, the convicted murderers of the victims cannot be executed.  The petitioners then sought a writ of mandate directing CDCR to promulgate such regulations.  The CDCR demurred to the petition, arguing that the petitioners lacked standing and that the CDCR’s actions are not subject to writ relief.  The court first found that the petitioners did have standing to sue.  The court explained that to have standing, a petitioner must show that he is “beneficially interested in the outcome.”  The court found that the petitioners were beneficially interested in the outcome given their status as crime victims.  More >
  • Defendant pleaded guilty to one count of wire fraud and one count of money laundering in connection with a Ponzi scheme that defrauded 141 victims.  The plea agreement required defendant to forfeit certain property to the government, and defendant was also ordered to pay more than 34 million dollars in restitution to the victims.  The government published notice of its intent to dispose of defendant’s forfeited property, and defendant’s father, along with three victims of defendant’s scheme, claimed an interest in the property.  

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  • Defendant pleaded guilty to two counts of violating a stalking protective order (SPO) and the trial court imposed restitution totaling $2,674.76 for expenses incurred by the victim as a result of the crime.  The victim’s expenses included the costs of:  changing her phone number; changing the locks on her home; staying at a safe house during court proceedings; obtaining copies of police reports in another state; and taking one day off from work to facilitate the changing of her locks.

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  • The Arizona Voice for Crime Victims represented the victim-petitioner and her mother in this appeal.  Edward D. Johnson, a private attorney in Peoria, Arizona generously donated his time to act as local counsel for NCVLI in the filing of an amicus curiae brief in the case in support of the victims’ rights.

    J.D. v. Hegyi, 335 P.3d 1118 (Ariz. 2014).

    When victim-petitioner was 16-years-old, she accused her step-father of sexual abuse and the state initiated criminal proceedings against him.  Pursuant to Arizona’s victims’ rights laws, mother and daughter refused to submit to a pretrial defense interview.  Trial was continued several times and during the pendency of the proceedings, the victim-petitioner turned 18-years-old.  

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  • The victim in this case was represented by the Utah Crime Victims Legal Clinic.  Paul G. Cassell, Ronald N. Boyce Presidential Professor of Criminal Law, College Of Law, University of Utah, generously donated his time to act as local counsel for NCVLI in the filing of an amicus brief with the Utah Supreme Court in support of the victims’ rights.

    State v. Brown, — P.3d —, No. 20130275, 2014 WL 5420915 (Utah Oct. 24, 2014).

    Following the entry of defendant’s guilty plea to unlawful sexual activity, the child-victim of defendant’s criminal conduct filed a notice of her claim for restitution; the trial court then rejected the child-victim’s filing, finding that she was not a proper party and lacked standing to file pleadings.  The trial court also denied a parallel request for restitution that was filed by the state that requested restitution for travel expenses and lost wages incurred by the child-victim and her mother in connection with attending several proceedings relating to the criminal charges brought against defendant.  The child-victim appealed, arguing that the trial court erred in finding that she lacked standing to seek restitution and in denying her claim for restitution.  

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  • The victim in this case was represented by attorneys for the Maryland Crime Victims’ Resource Center, who fought to protect the victim’s right to have the court’s consideration of his restitution request.

    Defendant entered into, and the court accepted, a written plea agreement with the state in which he agreed to plead guilty to one count of attempted robbery with a sentencing cap of 15 years with all but 18 months suspended in exchange for the state dismissing the other counts in the indictment. At sentencing, the victim, who had been shot and seriously injured during the attempted robbery, requested for the first time that defendant be ordered to pay restitution. Defendant objected on the basis that payment of restitution was not included in the plea agreement. The trial court denied the victim’s request, and the victim filed a motion for reconsideration. The trial court denied the victim’s motion on the basis that ordering restitution would be contrary to the plea agreement and an improper increase in sentence. The victim appealed. 

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  • Defendant, who was convicted of two counts of statutory sodomy in the first degree, appealed, arguing, inter alia, that the trial court erred in denying his motion for a judgment of acquittal because the victim’s testimony was contradictory and lacked corroboration. Historically, Missouri courts have imposed a “corroboration rule,” which requires a victim’s testimony to be corroborated if it is contradictory or when “the appellate court’s review of the evidence raises some undetermined level of uncertainty regarding the evidentiary support for the conviction.” 

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  • Defendant appealed his conviction of first-degree rape, arguing that the trial court erred in failing to grant him access to all of the victim’s mental health records. Defendant and the victim differed in their accounts of the encounter at issue, with defendant claiming it was consensual and the victim claiming it was rape. Before trial defendant sought the victim’s mental health records. The court ordered that the records be reviewed in camera and eventually provided defendant with 28 pages out of the thousands of documents in the records. During trial, evidence revealed that the victim had been diagnosed with a number of psychiatric and other medical conditions, including bipolar disorder, Tourette’s syndrome, post-traumatic stress disorder, and hypersexuality. The evidence also revealed that she had reported that she could sense the presence of dead people, was undergoing mental health treatment at the time of the incident, and took medications. Following his conviction, defendant appealed, arguing that the trial court violated his rights of confrontation and cross-examination by limiting disclosure of the records. On appeal, the court recharacterized the issue as one better analyzed under Brady. The court reviewed the undisclosed documents, which contained references to the victim having hallucinations and to the victim’s tendency to misremember or misunderstand events.More >
  • Petitioner was convicted after a guilty plea to one count of possessing between 150 and 300 images of child pornography, including two images depicting the child sexual abuse of the victim known as “Amy.” Petitioner appealed the decision of the United States Court of Appeals for the Fifth Circuit, which reversed the district court’s denial of the victim’s request for close to $3.4 million in restitution under 18 U.S.C. § 2259—the mandatory restitution statute that applies to offenses involving sexual exploitation of children—and held that each defendant who possessed the victim’s images should be made liable for the victim’s entire losses, even though other offenders played a role in causing those losses. The United States Supreme Court—accepting review to resolve a conflict in the courts of appeals concerning the proper causation standard to apply in cases subject to restitution under Section 2259—held that the Fifth Circuit erred in failing to construe Section 2259 as including a general proximate-cause requirement for all types of losses. In reaching this holding, the Court concluded that Section 2259’s “proximate result” language in the final “catchall category” of recoverable losses must be read to apply to all categories of losses enumerated in the statute. The Court explained that interpreting Section 2259 to include a proximate cause limitation comports with “common sense” as it “forecloses liability in situations where the causal link between conduct and result is so attenuated that the so-called consequence is more akin to mere fortuity.” The Court found that “the victim’s costs of treatment and lost income resulting from the trauma of knowing that images of her abuse are being viewed over and over are direct and foreseeable results of child- pornography crimes, including possession … .” The Court also held that the district court erred in applying the traditional “but-for” causation test to establish factual causation under Section 2259.More >
  • Defendant pleaded guilty to a misdemeanor charge of intentionally and knowingly causing bodily injury to the mother of his child.  Several years later, federal authorities learned that defendant was selling firearms on the black market, and he was indicted on two counts of illegally possessing a firearm under a federal statute prohibiting the possession of a firearm or ammunition by any individual who has been convicted of a misdemeanor crime of domestic violence, which is defined as requiring “as an element, the use or attempted use of physical force, or the the threatened use of a deadly weapon.”  Defendant moved to dismiss the indictment, arguing that his prior conviction did not qualify as a misdemeanor crime of domestic violence because it did not contain, as an element, the use of physical force.More >
  • Defendant was convicted of two counts of sexual conduct with a minor, two counts of transferring dangerous drugs, and two counts of involving a minor in drug offenses.  Before trial, defendant obtained at least seven trial continuances, during which time the victim turned 18-years-old.  After the victim turned 18-years-old, defendant moved to depose the victim’s grandmother—the person with whom the victim lived and who had been exercising the victim’s rights on his behalf.More >
  • Defendant was arrested on charges of sexually abusing the minor-victim, and the victim’s mother asserted victims’ rights on behalf of both her daughter and herself.  Defendant sought and was granted seven trial continuances and the victim turned 18-years-old before trial commenced.  Defendant then sought to compel the victim’s mother to submit to a defense interview, contending that she could no longer refuse an interview by asserting victims’ rights.More >
  • Defendant was convicted of the aggravated murder of his estranged wife, whom he murdered during an attempt to force her to recant allegations of physical and emotional abuse that formed the basis of a restraining order against him, and to give him custody of his daughter and leave the state.  When defendant’s plan was not immediately successful and police officers approached his location, defendant shot his wife.  The trial court, over defendant’s objection, admitted into evidence a number of statements made by the victim in connection with her application for a restraining order.  The court found that defendant had killed the victim “with the purpose of eliminating her as a witness.”More >
  • Issue:  Does Rule 29(a) of the South Carolina Rules of Criminal Procedure allowing post-trial motions without a hearing permit a sentence reduction by a judge without prior notification to the Victim or opportunity for the Victim to be heard concerning such reduction? 

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  • NCVLI participated in this case as amicus curiae in support of the crime victim’s petition for review before the Oregon Supreme Court.  NCVLI argued that the trial court violated the crime victims’ state constitutional and statutory guarantees of justice, fair treatment, and prompt restitution in the full amount of their economic damages when it incorporated civil comparative fault principles into criminal restitution. More >
  • NCVLI participated in this case as amicus curiae in support of the government’s opposition to the juvenile offender’s appeal before the Oregon Supreme Court.  NCVLI argued that restitution is sui generis in nature as it serves both civil and criminal law purposes, and that recent amendments of Oregon’s criminal and juvenile restitution laws have not fundamentally transformed restitution from a criminal sanction to a civil remedy that is subject to the state constitutional right to a jury trial for civil cases. More >
  • NCVLI participated in this proceeding as amicus curiae, along with co-amici Courthouse Dogs Foundation.  Amici argued that facilitating a victim’s exercise of rights through use of a facility dog does not result in a per se violation of a defendant’s rights, and that even if defendant’s rights had been implicated, victims should nevertheless be allowed the assistance of facility dogs to preserve their rights to meaningfully access the courts and participate in proceedings.  More >
  • Defendant was charged with three counts of fraudulent transactions and one count of second degree grand theft.  Defendant moved to dismiss three of the four counts for failure to comply with the statute of limitations.  The state then filed a nolle prosse dismissing all four counts that had been filed against defendant, stating simply that “[a]lthough there was probable cause for arrest and charge of the Defendant(s), the State has entered a Nolle Prosse in this case.”  The victim filed a petition for a writ abating the nolle prosse, arguing that his state constitutional rights to be informed, present, and heard at all crucial stages of the criminal proceeding were violated by his failure to receive advance notice of the decision to file the nolle prosse and to be informed that such an action was being considered. More >
  • Defendant is charged with shooting and killing or injuring a large number of victims in a movie theater.  The state filed 166 charges against defendant, naming 82 different victims.  Pursuant to state rule of evidence 615, defendant moved the court to sequester all of the state’s witnesses from all pretrial hearings, as well as from the trial itself.  The state separately moved the court to allow victims to be present during all critical stages of the criminal justice process, relying on victims’ unqualified state constitutional right to be present. More >
  • NCVLI participated in these proceedings as amicus curiae in support of the victim’s petitions before the Air Force Court of Criminal Appeals and the United States Court of Appeals for the Armed Forces.  NCVLI argued that the respective courts must recognize the victim’s right to be heard personally and through counsel on factual and legal matters regarding the admissibility of her private information at Military Rules of Evidence 412 and 513 hearings because:  (1) military victims have independent standing to assert and to seek enforcement of their rights through counsel; (2) the military judge’s discretionary powers do not extend to excluding participants’ views from consideration once standing is established; and (3) discrete moments of victim participation do not result in a per se violation of a defendants’ fair trial rights, do not create a per se appearance of impartiality, and do not implicate defendants’ confrontation rights.
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  • Defendant was convicted of predatory sexual assault against a child and endangering the welfare of a child—his daughter—and was sentenced to an indeterminate term of imprisonment of 25 years to life.  Defendant appealed his conviction, arguing, inter alia, that   the trial court erred in permitting the child-victim to be accompanied by a comfort dog during her testimony.More >
  • Defendant was charged with one count of repeated sexual assault of a child—his stepdaughter.  The trial court granted defendant’s motion for in camera inspection of the child-victim’s privileged therapy records, and the victim refused to consent to the release of the records. More >
  • NCVLI participated in this case as amicus curiae in support of the government’s opposition to defendant’s petition before the Oregon Supreme Court.  NCVLI argued that Oregon crime victims’ state constitutional rights to justice, protection and privacy, and to be treated with due dignity, respect and fairness—as well as their federal constitutional rights to privacy and to access the courts—required in camera procedures for rape shield hearings.  NCVLI further argued that holding such hearings in camera helps to ensure that Oregon’s criminal justice system protects both crime victims’ rights and defendants’ rights.  

    Defendant, charged with sexually assaulting a former employee, requested an evidentiary hearing under the state’s rape shield statute to determine the admissibility of evidence of the victim’s prior sexual conduct.  After the trial court denied defendant’s request that it open the statutorily mandated in camera hearing to the public, defendant filed a petition for a writ of mandamus requesting that the Oregon Supreme Court direct the trial court to hold a public hearing.
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  • The victim sought a civil restraining order against defendant for stalking.  She received a temporary order of protection, which was to remain in effect for six months, at which point a hearing would be held to determine if the order should become a permanent order of protection.  Defendant moved to vacate the scheduled hearing to allow her to conduct discovery, and the court granted this request and issued a discovery scheduling order.  More >
  • Defendant was charged with endangering the welfare of a child based on allegations that he emailed images of child pornography.  During pretrial discovery the prosecutor refused to allow defendant access to the computer images and required defense counsel to view the images in the prosecutor’s office.  Defendant moved to compel the prosecutor to provide him with copies of the images pursuant to a state court rule that mandates on an open file approach to criminal discovery. More >
  • Defendant was convicted in federal district court of using or carrying a firearm in relation to a crime of violence, which carries a 5-year mandatory minimum sentence.  During sentencing, defendant objected to the sentencing report that recommended a 7-year sentence, incorporating the longer minimum sentence mandated if the firearm was brandished during the crime.  Defendant argued that increasing the mandatory minimum to seven years would violate his Sixth Amendment right to a jury trial because it was clear from the jury verdict that the jury did not make the finding of fact that he brandished the weapon and therefore any increase would be improperly based on the judge’s finding of fact. More >