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Critics call 'Marsy's Law' a solution to a problem that doesn't exist

New Hampshire Union Leader

January 20. 2018 7:03PM
A crime victim identified as "Dawn" is surrounded by Gov. Chris Sununu, state lawmakers and others supporting a constitutional amendment to protect victims' rights. (Dave Solomon/Union Leader)

CONCORD — The state’s political elite have lined up behind a plan to enshrine victim rights in the state Constitution but defense lawyers, law professors and civil libertarians maintain it would be a radical, expensive change to New Hampshire’s unique criminal justice system.

Known as Marsy’s Law for New Hampshire, the lengthy proposed amendment to the state Constitution is being shepherded by high-power lobbyists funded by a California billionaire.

Legal experts said legislative leaders embracing this cause have no idea how disruptive this change would be for New Hampshire.

“This amendment would fundamentally alter the perception of due process we would have had for 225 years,” said Anthony Sculimbrene, a lawyer in the Gottesman and Hollis law firm in Nashua.

“It would give non-parties in court due process rights. That would be a humongous shift and those promoting it probably have no clue about the unforeseen consequences that can result from this.”

Albert “Buzz” Scherr, an evidence and defense law professor at the University of New Hampshire School of Law, said while well intended, this is such a dramatic change that legislators should set it aside and spend at least a year examining its impact.

Other opponents such as the American Civil Liberties Union of New Hampshire have maintained Marsy’s Law can be fixed with changes but Scherr disagreed.

“I am not a fan of acting so quickly in using the Constitution as a solution to a problem even if one exists,” Scherr said. “It is an unfunded mandate. It is not so broken that we need a constitutional fix in my view.”

Amanda Grady Sexton, public affairs director for the Coalition Against Domestic and Sexual Violence and a lead staffer in the Marsy’s Law campaign, said victims’ claims are not being considered on par with the claims of defendants who are covered under the Constitution.

Henry Nicholas, billionaire co-founder of Broadcom Corp., bankrolled this campaign after his sister, Marsy, was killed by her ex-boyfriend in 1983.

Under the proposed amendment, the rights of victims would be elevated to the same level as the rights of criminal defendants.

Opponents maintain the state’s Victim Bill of Rights, which is already on the books, currently provides protection.

Jeanne Hruska, policy director for the American Civil Liberties Union of New Hampshire, said these constitutional rights will lead to additional taxpayer expense.

“We have seen how Marsy’s Law has been implemented in other states and it has cost upwards of a couple million dollars a year in the Dakotas to implement,” Hruska said. “This is especially felt by smaller counties where there has to be additional staff hired.”

UNH’s Scherr said this would apply to all criminal felonies and misdemeanors so not just individuals but corporations would become victims with these rights.

“In the case of a shoplifting this makes Walmart a victim and these corporations will be able to assert those rights in court,” Scherr said.

Grady Sexton said the state courts currently do a decent job of providing notice to victims using federal money. And she stressed these protections would only be for victims who “opt in” to the case.

Sculimbrene said this amendment fails to recognize not all victims are innocent parties.

“Many times it’s hard for a judge to sort out the victims such as in a bar or a street fight,” Sculimbrene said. “Very often in my experience, the argument over victims can be between two drug dealers. Do we really believe they should have the same rights in court as a defendant?”

Scherr said this amendment would allow a victim to refuse to be interviewed or deposed by a defendant’s lawyer prior to trial.

“I’m not sure how that would pass a constitutional test. A defendant has the right to confront their accuser and this would compromise that,” Scherr said.

Sculimbrene pointed out those interviews only occur if a judge approves them.

Grady Sexton said New Hampshire is one of only five states in the nation that allows for these interviews.

She agreed this campaign is an intermediate solution to have New Hampshire join the 35 other states that recognize victim rights in their constitutions but it’s not the ultimate answer.

“This is an important first step but there’s no question the final solution is to place this in the federal Constitution so it is uniformly respected in all courts across the country,” Grady Sexton said.

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