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National Crime Victim Law Institute

Collaborating to Create Change

September 29, 2020

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Laws—even those that afford rights to crime victims—are merely words on paper until someone asks for their rights in court and, ultimately, an appellate court interprets the words. Litigating victims’ rights and securing appellate case law are key components of the Rights in Systems Enforced (RISE) Project. Today’s legal victories achieved through litigation in appellate courts create precedents to improve criminal justice for tomorrow. It is truly exciting for all of us at NCVLI to collaborate with our RISE Clinics to create change for today’s and tomorrow’s victims. Below are spotlights of three of the RISE Clinics’ recent appellate work.

Ohio

The Ohio Crime Victim Justice Center (Ohio Clinic) undertook a case of first impression on a victim’s right to protection. In the case defendant was charged and convicted of domestic violence, as well as violation of a protective order, and as a result of his convictions was sentenced and also subject to a firearm disability – meaning he cannot possess firearms. The Ohio Clinic represented the victim to oppose defendant’s request for relief from firearm disability, citing her constitutional rights to safety and protection in her opposition. The trial court did not allow the victim’s full participation so the victim sought review. The intermediate court ruled in the victim’s favor but the offender has sought further review saying – essentially – the victim does not have standing to exercise her protection rights in this way in the trial or appellate courts. In the words of the Ohio Clinic, “We are excited to be able to represent J.S. in this case of first impression in which the Ohio Supreme Court will decide whether a state trial court judge can relieve a convicted domestic violence offender’s federal firearms disability. We share J.S.’s hope that the Supreme Court will affirm the 12th District Court of Appeals decision and uphold the rights to safety and protection for J.S. and every other victim of domestic violence in Ohio.” This is a critical case on victim standing as well as the right to protection that will inform victims’ rights in Ohio and across the nation.

Florida

NCVLI partnered with Legal Aid Service of Broward County and Coast to Coast Legal Aid of South Florida (collectively, “Florida Clinic”) as amicus curiae to fight for a victim’s right to participate through counsel. In the case of a child sexual assault, the victim’s attorney filed a notice of appearance and assertion of victims’ rights in the juvenile case proceeding against the perpetrator. The trial court refused to accept the filing, essentially denying the victim any meaningful avenue to protect her rights. When the victim’s counsel filed for appellate review, NCVLI and the Florida Clinic paired up to file an amicus. As the Florida Clinic noted, “Many questions remain as to the interpretation of Florida’s constitutional crime victims’ rights amendment; the fundamental rights to notice, to be present and heard, and to participation through counsel; as well as to a remedy for the violation of a right. The outcome of this case will impact all Florida crime victims.”

Arizona

Arizona Voice for Crime Victims (the Arizona Clinic) has been litigating victims’ rights for more than two decades and recently NCVLI was able to partner as amicus curiae on one of their key cases. In a case that has gone to the state supreme court twice, EH v. Slayton II, the Arizona Supreme Court held that a restitution cap negotiated by the State and a criminal defendant as part of a plea agreement violated a victims’ rights to receive full restitution. In holding that the caps violated victims’ rights, the Court overruled precedent that predated the state’s constitutional victims’ rights and recognized the individual nature of victims’ rights and that they cannot be waived by the government or a criminal defendant. Importantly, the Court also explicitly recognized that victims have a right to have their own counsel in the well of the courtroom during criminal proceedings. This case is groundbreaking for the country.