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National Crime Victim Law Institute

Fighting for Positive Case Law

March 24, 2016

As part of NCVLI’s legal advocacy work, we participate in cases around the country as amicus curiae, which is Latin for “friend of the court.” Our role as amicus is to explain to the courts how their decision in any single case will impact future victims. In the Spring of 2016, we have partnered on numerous cases, four of which we highlight below.  We are so grateful to local counsel and our co-amici for helping us ensure victims’ voices are heard!

Oregon - With the help of pro bono attorney Sarah Einowski of Tonkon Torp LLP, we filed an amicus curiae brief with the Oregon Court of Appeals. In the case Defendant pleaded guilty to attempted third-degree rape and first-degree online sexual corruption of a child. The victim in the case, a minor, continued to have intense fear of defendant after defendant’s arrest.  As a result, her family researched, purchased and had installed a security system and subsequently sought to recover the cost in restitution. Despite the trial court’s finding that defendant’s actions caused the victim to incur the cost of the security system, the trial court awarded only partial restitution, requiring defendant to cover only one-year of the three-year contract.   In the brief, we argued that the trial court erred when it failed to award restitution to cover the full cost of the home security system, a cost incurred due to the actions of defendant.  

A special thank you to Sarah Einowski of Tonkon Torp for serving as NCVLI’s pro bono local counsel!

South Carolina - In a case pending before the South Carolina Supreme Court, the privilege holder learned for the first time at trial that not only had the defense sought her privileged mental health records, but that they had been ordered disclosed to the defense.  NCVLI - along with co-amicus South Carolina Victim Assistance Network (SCVAN) - submitted an amici curiae brief emphasizing that victims, witnesses, and other privilege holders are entitled to protection of their rights even in the midst of criminal justice proceedings.  We argued that key among these rights are the due process rights of notice and a meaningful opportunity to be heard before the confidentiality of their privileged records is violated.  The brief urged the South Carolina Supreme Court to affirm these rights and to clarify the appropriate procedures by which these rights may be protected when access to privileged records is sought so that these violations do not continue to occur in future cases.

A special thank you to Meliah Bowers Jefferson, Esq. of Wyche, Attorneys at Law, for serving as NCVLI’s pro bono local counsel and to the legal team at SCVAN for being co-amici and coordinating the filing!

Washington DC - Joined by the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP), the Wendt Center for Loss and Healing, and the District of Columbia Coalition Against Domestic Violence (DCCADV), NCVLI filed an amicus brief in support of the victim’s petition for rehearing en banc in a case before the DC Court of Appeals.  The case involves a victim whose privileged mental health records were subpoenaed by the defense, and which were obtained and reviewed by the trial court before the victim was provided with notice and an opportunity to object to the disclosure.  Amici argued that the procedure violated victims’ rights and that even en camera review of confidential and privileged records is a violation of privacy.  Thank you to Meghan Martin of Arnold & Porter LLP for serving as our pro bono local counsel!

United States Supreme Court - NCVLI joined Arizona Voice for Crime Victims, the Never Again Foundation, and the Arizona Coalition to End Sexual and Domestic Violence as amici curiae asking the Supreme Court to grant review in the case of M.A. v. Padilla.  Amici argued that subjecting the most vulnerable of victims, child-victims, particularly child victims of sexual offenses, to a personal cross-examination at the hands of their molester will result in significant harm to children and may impair their ability to testify at trial, thus impeding the truth-seeking function of confrontation.  Amici further argued that the purpose of confrontation is served, and the right is not violated, when the combined effect of the elements of confrontation are present; they include physical presence, oath, cross-examination, and observation of the witness’s demeanor by the trier of fact.