coard art

The public should be aware that the criminal court system is not so much about whether a person committed a crime as much as it is about whether that person receives due process.

Here’s an example. Several years ago, I represented a defendant who was charged with capital murder in connection with the shooting death of a police officer. While I was walking into the Justice Juanita Kidd Stout Center to defend him at a preliminary hearing, a reporter shoved a microphone in my face and yelled, “Your client’s a cop killer. He committed a brutal murder that was graphically caught on video.” I calmly responded, “OK, sir. There are two options here. We either take my client upstairs for a hearing or we take him out back for a lynching. Your choice.”

My point to the reporter was, basically, “trust the process”- due process, that is.

On November 5, a referendum known as Marsy’s Law will be presented to the Pennsylvania electorate. And you must vote no.

Marsy’s Law would require that Article I of the Pennsylvania Constitution be “amended to grant certain rights to crime victims” including, but certainly not limited to, “consider[ing] their safety in bail proceedings” and allowing for their “right to refuse discovery requests made by the accused.”

First of all, despite Marsy’s Law’s language, there can’t be a “crime” victim until the accused is convicted, which means after he or she is no longer presumed innocent following a trial and guilty verdict. Second, an “accused,” as mentioned in Marsy’s Law, is just that- a merely accused person, not an adjudicatedly convicted person. Third, Marsy’s Law defines a victim as “A person against whom the criminal act was committed and any person who was directly harmed by it.” That’s problematic because the existence or non-existence of a “criminal act” cannot be determined until a trial takes place and also because the definition offered for the word “victim” is so overly broad that it could include almost anyone. I’ll explain that later in my “That Ain’t Fair” section regarding police officers.

At the beginning of this column, I used the phrase “due process,” which is a legal term that Black’s Dictionary of Law defines as “procedures” that “protect persons from state actions.” The Fifth Amendment to the U.S. Constitution defines it as the protection from a government that attempts to arbitrarily “deprive” a criminally accused person of “life, liberty, or property.”

But Marsy’s Law blatantly violates due process and therefore jeopardizes the life, liberty, and property of everyone.

Marsy’s Law stems from the 1983 murder of Marsalee Nicholas whose mother, unaware that Marsy’s ex-boyfriend, the alleged killer, had been released on bail, happened to see him in a California supermarket. By the way, since he was on bail, that means he had not yet been convicted of anything, which in turn means he was still constitutionally presumed innocent. The Nicholas family was outraged by that happenstance encounter.

It is unfortunate that a decedent’s family would ever have to experience the trauma of seeing an accused killer or any other alleged assaulter walking around (temporarily) free. But there’s absolutely no need for a constitutional amendment to resolve such an issue. What could be done instead is exactly what’s been done in each of the literally thousands of assault-related cases I’ve handled during my more than 25 years as a defense attorney. And that is, in addition to a prosecutor requesting a legally high bail, that prosecutor also simply requests that a judge issue a stay-away order as a condition of bail. And, as a matter of course, judges have done and will do exactly that automatically each and every time. If defendants violate the order, they’re immediately arrested and jailed with bail revoked. It’s as easy and as perfunctory as that.

Although Marsy’s Law is well-intentioned, the road to hell, as we all know, is paved with good intentions.

Here are five incontrovertible reasons why Marsy’s Law must be rejected:

1. When you’re right, you’re right.

Marsy’s Law is based on the fictitious notion of “victim’s rights.” However, while victims do have and should have protections, safeguards, support, and sympathy provided by the government- meaning prosecutors and judges- only suspects and defendants do have and should have “rights.” That word, in the applicable criminal law context, has a technical definition. “Rights” are not checks against an individual criminal’s abusive behavior but instead are checks against a powerful government’s abusive deprivations.

“Rights” are protections “from” a government, not assistance “by” a government. This is precisely why Thomas Paine declared, “It is the duty of the patriot to protect his [or her] country ‘from’ its government.”

The Bill of Rights, in pertinent part, explicitly enumerates what the government is kept “from” violating and that document specifically lists “rights” concerning religion, speech, press, assembly, petitioning, arms, soldier quartering, searches, seizures, double jeopardy, self incrimination, due process, impartial juries, notice, confrontation, compulsory process, defense counsel, jury trials, bail, and punishment.

The government in the form of prosecutors and judges have four frighteningly awesome powers in that it can take your property via fines, your children via custody orders, your liberty via incarceration, and your life via capital punishment. In connection with that, Benjamin Franklin used the word “liberty” as a synonym for “rights” when he declared, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

2. That ain’t fair.

Marsy’s Law would bar a defendant (as well as a judge) from receiving legally relevant and clearly exculpatory evidence from a prosecutor about the complainant (i.e., the alleged victim) in preparation for trial. What if the complainant has a secret history of psychosis or delusions or lies or bias or some other issue affecting his or her credibility?

Furthermore, pursuant to this “victim’s refusal” component of Marsy’s Law that also allows an alleged victim to claim that he or she is fearful of being located and harassed by a defendant, police who shoot or beat someone could claim to be victims of the very person they shot or beat and therefore could withhold evidence from the defense lawyer representing the person who was arrested and charged after having been shot or beaten by police. It actually happened in North Dakota last year under that state’s Marsy’s Law.

3. Unintended consequences.

Because Marsy’s Law provides alleged victims with powers of constitutional proportions, if a brutalized domestic assault victim forgives his/her boyfriend/girlfriend or husband/wife and refuses to testify at the hearing or trial, the prosecutor could be precluded from getting a material witness warrant to compel that victim’s testimony against the vicious but romantically cunning perpetrator.

4. Much ado about nothing (that’s needed).

Pennsylvania already has a law called the Crime Victims Act. It was passed in 1998 and provides for alleged victims to be notified of court proceedings, to be given prosecutorial assistance at those proceedings, to offer comment regarding plea deals and other matters at court-related proceedings, to receive information about services available to them, to receive restitution and compensation, and to have their evidentiary property returned expeditiously.

5. One very bad apple.

I must concede that Marsy’s Law does have a few good requirements, e.g., the requirement that (actual) victims be notified when a prison inmate has escaped. But its bad far outweighs its good. And because one bad apple does indeed spoil the whole bunch- since this proposed law is presented as a single package having 15 combined requirements (technically 15 combined amendments) instead of one separate requirement (i.e., one separate amendment) to be voted on separately as Article XI of the Pennsylvania Constitution indisputably mandates- its all rotten.

On Nov. 5, uphold the law and protect the constitution by voting no on the unlawful and unconstitutional Marsy’s Law.

The opinions expressed in this commentary are his. View more opinions on phillytrib.com.

Michael Coard, Esquire can be followed on Facebook, Twitter, and Instagram as well as at AvengingTheAncestors.com. His “Radio Courtroom” show can be heard on WURD96.1-FM and “TV Courtroom” show can be seen on PhillyCam/Verizon/Comcast.

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