Justice and the Rights of Victims

November 27, 1993|By PATRICK ERCOLANO

Six weeks before the start of the 1994 General Assembly session in Annapolis, one bill with a ''can't miss'' label is a proposed constitutional amendment promising certain rights during court proceedings to victims of violent crimes.

But before legislators OK the amendment for public judgment on next November's ballot, they need to examine its flaws. Not the least of these is the threat to the crucial premise that every defendant is presumed innocent until proved guilty in a speedy and impartial trial.

The amendment, backed by more than 40 anti-crime and victim-advocacy groups in Maryland, aims to guarantee three rights to crime victims or their survivors: to be informed of the ensuing trials, to be present throughout the trials and to be permitted to make ''victim impact'' statements at sentencing.

Some of these rights and others like them are on the state books, but as amendment advocates assert, the existing measures are discretionary. Judges let them slide, heeding the objections of public defenders who argue that catering to victims can prejudice a jury against a defendant. An amendment would provide enforcement, supporters say.

About 15 states have similar amendments. Maryland advocates have pushed the idea unsuccessfully for three years. Legislation sped through the Senate but hit the roadblock of the House of Delegates Judiciary Committee, a panel formerly chaired by amendment opponents. However, current chairman Joseph Vallario has supported victims-rights measures approved by the legislature over the past decade and would likely give his blessing to the amendment this winter.

The favor of Mr. Vallario and other powerful figures -- including Senate President Mike Miller and possibly Governor Schaefer -- would make the bill hard to beat. It would also be boosted by the politics of fear. For the '94 campaign, crime is shaping up to be more of a burning issue than usual. No doubt many legislators will view endorsement of the amendment as a great card to play as they stump for votes.

What's more, the pols could avoid responsibility for their yeas by claiming the people should decide the issue through a ballot referendum. And once it's on the ballot, bet on it to win in a walk. Voters love the sound of victims-rights bills. In states where such measures were voted on last year, the public approved them overwhelmingly.

So why oppose the concept if it's popular? Take the Maryland proposal. It's troubling, in part, for its vague definition of ''crime victim.'' It makes no differentiation between, say, someone shot in a hold-up and a witness to the shooting. Should the witness get to make the same claims during a trial as the shooting victim? Adding unnecessary steps to cases wouldn't sit well with prosecutors who worry that the costs of informing and conferring with crime victims would strain their already underfunded, bogged-down offices. For example, plea bargains made at arraignments to keep the heavy volume of cases moving could be hampered if victims were made a third party in the process.

Another flaw in the amendment is its insistence that victims be present throughout a trial, even if they're potential witnesses. This defies the standard procedure of sequestering witnesses so they don't hear testimony that could influence what they say on the stand.

Not all demands of victim advocates are unreasonable. Impact statements at post-conviction sentencings are sensible. But something as sweeping as a constitutional amendment creating a third party in a traditionally two-party legal system needs closer examination than it might get next year in the General Assembly. Lawmakers must make certain nothing is allowed to obstruct the basic American right to due process. A crime victim's suffering is deplorable enough; it shouldn't be compounded by a mishandled trial that might lead to an incorrect finding of guilt.

Even the amendment's authors seem to sense they're on shaky legal ground. They inserted into their draft of the bill disclaimers that it doesn't seek to limit an accused person's constitutional rights or prohibit the sequestration of a crime victim at a trial for good cause. Yet isn't that just what the proponents want?

Crime victims deserve sympathy. They deserve sensitivity from the legal system. But some of their goals come perilously close to tugging the blindfold off the eyes of justice. Legislators who might be inclined toward fast ratification should first give this amendment a good hard look.

Patrick Ercolano writes editorials for The Baltimore Sun.

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