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National Crime Victim Law Institute

New and Noteworthy

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  • Payton v. State, 266 So. 3d 630 (Miss. 2019)

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    Defendant, convicted of rape and kidnapping, died before his appeal brief was due and his appointed counsel moved for abatement ab initio to void the entire criminal proceeding.  When considering the motion, the court sought supplemental briefing to address, inter alia, the ramifications of the state’s constitutional and statutory victims’ rights laws on Gollott v. State, 646 So. 2d 1297 (Miss. 1994), a case in which the state supreme court had upheld the doctrine of abatement ab initio.  In addressing this question, the court noted that Mississippi had adopted its constitutional and statutory victims’ rights provisions after Gollott was decided.  Upon reviewing the history of these provisions, the court observed that the victims’ rights laws formally recognized crime victims and afforded them substantial rights within the criminal justice process, including “the right to be provided information by law enforcement, the right to confer with the prosecuting attorney, the right to receive a transcript of the proceedings, the right to be present throughout all proceedings, and the right to participate during any entry of a plea of guilty, sentencing or restitution proceeding.”  The court went on to recognize that “[i]n the decades since Gollott departed from established precedent …  [t]he landscape has changed to protect victims from being traumatized again.”  The court then looked to other jurisdictions for guidance.  As the court noted, the Alaska Supreme Court had addressed similar concerns in 2011, when it considered the doctrine of abatement ab initio in light of that state’s comprehensive victims’ rights laws.  Ultimately, the Alaska court rejected the doctrine as contrary to victims’ legal rights.  The court noted that this rejection follows a trend—states such as Alabama, Idaho, Montana, Washington, Colorado, Nevada, and Maryland had already rejected abatement ab initio due to victim-based concerns.  After reviewing the court decisions from other jurisdictions, the Mississippi Supreme Court concluded that “[b]ecause of the increased recognition of crime victims in both our Constitution and statutory law, we find that departure from the abatement ab initio doctrine is necessary to avoid the perpetuation of pernicious error… .   The abatement ab initio doctrine tramples upon victims’ rights by denying victims ‘fairness, respect and dignity.’  Moreover, we find that the policies undergirding stare decisis—consistency and definiteness in the law—are not served by continued application of the abatement ab initio doctrine.”  Ultimately, the court followed Alaska, adopting an approach that “strikes a balance between the rights of the victim with the rights of the accused.”  Specifically, the court overruled Gollott and held that, if a criminal defendant dies while the defendant’s appeal is pending, the conviction is not abated and the appeal is dismissed as moot, unless the defendant’s estate or personal representative substitutes in for the defendant and elects to continue the appeal.  The court reasoned that “[b]ecause our Constitution balances the rights of the accused with the rights of the victim, we—as guardians of the Constitution—can do no less.  [Defendant] has been accorded his constitutional rights; [the victim] shall be accorded hers.”  Recognizing that the abatement ab initio doctrine originated, in part, to avoid financially punishing a defendant’s family, the court emphasized that, although it “decline[d] to abate a deceased appellant’s criminal conviction ab initio, [it] ‘d[id] not preclude courts from abating financial penalties still owed to the county or State, as opposed to restitution owed to victims, where the death of a defendant pending an appeal creates a risk of unfairly burdening the defendant’s heirs.’”  Because neither the estate nor a personal representative of defendant moved for substitution in this case, the court dismissed defendant’s appeal as moot and left his conviction intact.

  • State of Wis. Crime Victims Rights Bd., The Right to Reasonable Protection from the Accused Throughout the Criminal Justice Process (Mar. 22, 2019), https://www.doj.state.wi.us/sites/default/files/ocvs/CVRB/CVRB%20RR%2034.pdf

    Pursuant to statutory authority, the Crime Victims Rights Board (“Board”) is authorized to issue reports and recommendations concerning the securing and provision of crime victims’ rights and services.  This report was issued after review of a complaint before the Board alleging a violation of a victim’s constitutional right to reasonable protection from the accused throughout the criminal justice process by an elected clerk of the court.  The victim was a victim of felony child sexual assault.  Many years later, as an adult, she requested a copy of the case file from the trial judge’s clerk.  The clerk told the victim that she must make a written request to see the records and must use her full legal name and home address in making the request.  The victim asked to use her maiden name to shield her current name from the offender out of a concern for her safety, but the clerk refused.  The victim provided her full name and address as instructed in a written records request that became part of the public record.  When the victim’s name appeared in the case record history, she contacted the clerk of court to remove the public entry of her name.  The clerk of court removed the name and replaced it with “victim.”  The victim subsequently filed a complaint with the Wisconsin Department of Justice, which was ultimately reviewed by the Board.  She argued that by requiring her to put her married name, she was unreasonably and unnecessarily put at risk from the offender, who did not previously know her new name.  The Board determined the victim’s right to protection was violated, and the clerk bore responsibility for the court’s faulty policy as the custodian of the records filed in the county’s circuit court.  The Board expressed concern that the clerk still endorsed the practices that resulted in the disclosure of the victim’s name, and did not offer a solution that would be protective of victims in similar situations in the future; rather, the clerk’s conclusion was that the only course of action was to correct such errors after the fact if they are brought to the attention of the office.  In the Report, the Board found that not only the clerk, but all employees, agencies, and officials of the state share responsibility in enacting and promoting policies to ensure the protections enumerated in the state constitution in a manner that treats crime victims with fairness, dignity and respect for their privacy.  The Board noted that although crime victims’ privacy cannot be shielded absolutely during the criminal justice process, public policy nonetheless “demands the balancing of victims’ interests with competing interests.”  Further, it is “the duty of the state to earnestly perform this task of balancing through deliberate consideration and awareness of the standards set forth in statute and in the constitution.”  The Board continued: “All too often, the rights of victims are an afterthought or incorrectly viewed as a suggestions or ‘best practice’ or even a courtesy to provide if possible.  It is imperative that those with authority over policies that impact victims are cognizant of, and take action to protect, victims’ rights with a sense of purpose befitting a constitutional mandate.”

  • In re G.R., --- A.3d ---, No. 32, Sept. Term, 2018, 2019 WL 1434571 (Md. Apr. 1, 2019)

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    Juvenile defendant was adjudicated delinquent after he pleaded “involved” to charges of robbery, second-degree assault, and openly carrying a dangerous weapon.  Following the restitution hearing, juvenile was ordered to pay restitution, including for the cost of rekeying household locks belonging to family members of the victim when their keys were stolen from the victim’s backpack during the course of the robbery.  Juvenile appealed.  The appellate court vacated a portion of the restitution order to the extent juvenile was ordered to pay restitution for the costs of rekeying locks, based on the determination that the decision to rekey locks was not the direct result of the theft of the victim’s backpack.  The state petitioned for and was granted certiorari review.  The court explained that Maryland’s restitution statute provides that a juvenile may be ordered to pay restitution for certain expenses suffered as a “direct result” of the delinquent act.  The court found that the value of the locks was substantially decreased when the keys were removed from the possession of the victim during the course of the underlying robbery.  Household locks and the corresponding keys “ensure the sanctity and security of the home.”  Even though the locks themselves were not damaged as a result of the theft of the keys, there was nonetheless a substantial decrease in their value when the keys were stolen, because it brought into question the underlying security of the homes: “A victim can only be left to wonder whether future intrusions on the sanctity of the home may occur as a result of the stolen keys.”  The substantial decrease in the security of the homes could only be remedied by the return of the keys without them being copied, or by the rekeying of the locks. Accordingly, the decision to rekey was not an intervening event, as the locks’ substantial decrease in value could be directly attributed to the robbery.  This was true even though substantial time passed between the robbery and the decision to rekey the locks.  The judgment of the appellate court was reversed.  In reaching this decision, the court affirmatively stated that it was not relying on any tort or reasonableness standard with regard to causation: “We take this opportunity to reaffirm that importing any tort causation analysis into the direct result standard [of the restitution statute] would straightforwardly contravene the plain language of the statute.”

  • State v. Campbell, --- P.3d ---, No. A162357, 2019 WL 457574 (Or. Ct. App. Feb. 6, 2019)

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    Defendant was convicted of first-degree assault in charges arising from a domestic assault.  He appealed, and the state cross-appealed, assigning error to the trial court’s denial of its request for restitution to CareOregon, a state-funded health insurance company, for the amount paid to cover the victim’s medical expenses.  To substantiate its request at the restitution hearing, the state submitted copies of health insurance claim forms that had been filed with CareOregon for the victim’s treatment and called CareOregon’s subrogation coordinator as a witness.  Defendant urged the trial court to deny the request, arguing that the state failed to show that the medical expenses were reasonable as required by Oregon statute.  The trial court agreed with defendant, noting that no one testified as to having assessed the reasonableness of the bills.  On cross-appeal, the state argued that a discounted medical bill paid by an insurer is prima facie evidence of reasonableness unless otherwise rebutted.  The court began its consideration of the cross-appeal by describing that under Oregon law, victims are entitled to restitution for “reasonable charges necessarily incurred” for medical services.  Although the amount paid is an important factor in determining the value of the services received, it is not enough.  Some other evidence is needed to show that the expenses are reasonable.  Oregon courts had not yet determined whether proof of payment by a health insurer presents sufficient evidence of reasonableness.  Consistent with common law and statute, which finds that recoverable damages are based on the value of necessary services, the court concluded that market rate is a reasonable amount for a victim to recover for medical expenses.  Consequently, the court held that the state can demonstrate the reasonable value of medical expenses by offering evidence that the medical expenses reflect the usual and customary rate for those services in the market wherein they occur.  Health insurers, although not hands-on providers of medical care, may be well situated to assess what sums are usual and customary and, therefore, reasonable, given their central role in negotiating group contracts for employees and employers, establishing payment rates with medical provider groups, and processing masses of individual claims in the modern market.  Therefore, the court concluded, the fact that a health insurer has paid a medical bill is something more than evidence of a medical bill standing alone; it is some indication of the charge’s reasonableness.  Applying those principles to the case at hand, the court concluded that the record contained sufficient evidence upon which a factfinder could conclude that the requested restitution to CareOregon was reasonable.  In addition to health insurance claim forms showing the amounts charged, a ledger showed the amounts paid.  CareOregon’s payments were a fraction of the total bills issued, and a witness explained that they were at or below the usual and customary rate for those services in that market.  Such evidence of payments at or below market rate sufficed to permit a factfinder to find that the amounts sought as medical expenses were reasonable.  The court further found that its conclusion is required for the added reason that the payments were made by a publicly funded health insurer who, by design, can only make payments at reasonable rates.  In conclusion, the court summarized, when proving economic damages for restitution, the state can establish that charges for medical services are reasonable by providing evidence that the charges reflect the usual and customary rates for those services in the market.  Here, the state provided sufficient evidence of reasonableness when it showed that CareOregon, a publicly funded health insurer, made payments for medical expenses at state Medicaid rates that were “much lower” than “standard” rates, amounting to a fraction of the original charges.  Therefore, the trial court was free to require restitution for the payments for medical expenses as a part of its sentence upon a judgment of conviction for defendant’s offenses.  Affirmed on appeal; reversed and remanded on cross-appeal.

  • Toole v. State, --- So. 3d ---, No. 4D17-2115, 2019 WL 761620 (Fla. Dist. Ct. App. Feb. 20, 2019).

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    Defendant pleaded guilty to dealing in stolen property and false verification or ownership to a pawnbroker and was ordered to pay close to $10,000 in restitution.  Defendant appealed the restitution order, arguing that the restitution amount was not only for items pawned, but for all items missing by the victim (outside of the those relevant to the charges), and that the victim merely “guesstimated” the replacement value of items rather than providing the true fair market value of replacement.  The court explained that under Florida law, the state bears the burden of demonstrating the amount of loss sustained by the victim as a result of the offense.  Fair market value can be established by direct testimony using four factors: (1) the original market cost; (2) the manner in which the item was used; (3) the general condition and quality of the item; and (4) the percentage of depreciation.  The victim here met the first factor, but not the others.  Accordingly, the testimony was insufficient to establish fair market value.  The court noted that restitution “continues to be a perplexing uphill battle for victims,” and that Floridians recently amended the Constitution in part to address restitution.  However, “[d]espite the statute, the rules, the case law, and the constitutional amendment, proving restitution continues to be difficult for victims, and receiving compensation for their loss continues to be elusive.”  The court noted that it had previously suggested a legislative fix by adding language into the restitution statute that the court is not bound by fair market value as the sole standard for determining restitution amounts, but rather may exercise its discretion to further the purposes of restitution.  However, the statute has not yet been amended.  Accordingly, the court reversed the restitution award, but certified the following question to the Florida Supreme Court as a matter of great public importance: Is the formula for determining restitution based on the fair market value of the victim’s property still viable after the passage of the Constitutional victims’ rights amendment, or should a trial court no longer be bound by fair market value as the sole standard for determining restitution amounts, and instead exercise discretion to further the purposes of restitution?  Reversed.