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National Crime Victim Law Institute

What ever happened with that case I worked on at NCVLI?

April 16, 2010

If you were a Crime Victim Litigation Clinic student in Spring 2008, you might have worked on one of these two cases with NCVLI:

State v. Worthen, Nos. 20080128, 20080163, 2009 WL 4573714 (Utah Dec. 8, 2009).

In August 2008, NCVLI submitted a joint amici curiae brief with the Utah Crime Victims Legal Clinic in State v. Worthen, portions of which were based on the research conducted and initial brief drafted by Ben Lull and Beth Jarvis while they were students in the Spring 2008 Crime Victims Litigation Clinic. The victim in the case is a 13-year old girl who, during counseling for a suicide attempt, disclosed to her therapist that her adoptive father had sexually abused her. After the adoptive father was charged with multiple counts of aggravated sexual abuse, he asked the court to order the victim to produce her confidential counseling records. The state opposed the request, arguing that mental health records are privileged under Utah law and that the defendant’s request did not meet any of the statutory exceptions to this privilege. The trial court ruled in the defendant’s favor, and the court of appeals affirmed. The state and guardian ad litem, who was appointed to represent the victim’s interests, petitioned the Utah Supreme Court for certiorari on the appellate court’s decision.

NCVLI responded in its brief to one of the four questions that the court certified for review: whether the court of appeals erred when it affirmed the trial court without considering Utah’s victims’ rights laws. Given the rights at stake – including the child-victim’s right to fair and sensitive treatment, to the vigorous protection of her rights, and to have any issue properly raised considered on appeal – NCVLI argued that, in affirming the trial court, the court of appeals failed to meet its general obligation to ensure the fair administration of justice and its specific obligations to victims under state law.

Unfortunately, the supreme court recently affirmed the court of appeals without ruling on whether the lower court erred in failing to take Utah’s victim’s rights protections into account when considering an exception to the victim’s psychotherapist-patient privilege. The court stated that it would not decide the issue because the statutory provision under which appellate courts are obligated to consider all arguments relating to victims’ rights was not triggered because the record did not reflect an appeal of the trial court’s adverse ruling on victims’ rights grounds. Despite declining to rule on the issue, a section of the court’s opinion discusses the arguments raised by NCVLI. In this discussion, the court concluded that the victim’s rights provide “considerable policy-based arguments for supporting evidentiary privileges,” but that even such strong policy considerations could not mandate analysis by the court of appeals where the issue had not been properly preserved for appellate review.

State v. WBAL-TV, 975 A.2d 909 (Md. Ct. Spec. App. 2009).

The Maryland Court of Special Appeals recently issued its decision in State v. WBAL-TV, a case in which NCVLI filed an amicus curiae brief that Katie Carson and Melanie Kebler helped draft while students in the Spring 2008 Crime Victims Litigation Clinic.

At issue before the court was a motion that WBAL-TV (WBAL), a television station, made at the conclusion of defendant’s trial for first degree murder and first degree rape, to access and copy portions of DVD and audio recordings of defendant’s graphic confessions.

The state and defendant had opposed the motion, and the parents of the murder victim had moved to seal or limit inspection of the recordings, all of which had been introduced as exhibits at trial. The circuit court nonetheless granted WBAL’s motion for access and denied the victims’ motion to seal.

After the victims, the state, and defendant appealed this ruling, WBAL moved to dismiss and concurrently agreed to further redaction of the DVD and audiotape.

On appeal, the victims and the state argued that the circuit court abused its discretion by granting WBAL access to the recordings because (1) the victims’ constitutional rights “to be treated … with dignity, respect, and sensitivity during all phases of the criminal justice process” outweighed WBAL’s right to access and copy the court records, and (2) copies of the full transcripts of the DVD and the audiotape, already received by WBAL, were sufficient to satisfy local rules governing access to court records.

The court rejected these arguments, holding that the victims’ constitutional rights did not preclude the trial court from exercising its discretion regarding access to the exhibits; instead, the court found that the constitutional rights of victims in Maryland to due consideration in “all phases of the criminal justice process” does not “provide victims with an absolute right to veto a request to access and copy court records.”

As such, the appellate court affirmed the lower court’s decision to grant WBAL’s motion for access, affirmed the court’s denial of the victims’ motion to seal, and remanded the case to the circuit court for further redaction of the DVD and audiotape, as agreed to by WBAL.