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New Victim's Rights Law Continues to Raise Controversy

Here is an article from the Bangor Daily News and Maine Public Radio discussing this issue by Steve Mistler. Tim Zerillo was interviewed for the article regarding the various legal issues that are presented by the proposed law. The article is below:

Legislative leaders in both parties are vowing to enact a constitutional amendment designed to give victims of violent crimes the same legal standing as those accused of committing them.

The so-called victims' bill of rights is backed by several high-powered lobbyists and has the financial backing of a California billionaire. But the national effort to put the accused and victims on equal footing may be more complicated than it sounds.

For Arthur Jette, a victims' bill of rights is deeply personal. Seventeen years ago, Jette learned that his 21-month-old grandson and his daughter's best friend had been murdered at the young woman's home in Dexter. Both were shot in the head.

“It shattered my reality and changed my entire perspective of life. It affected me, right to my DNA,” he says.

Jette spoke slowly and shuffled his written remarks as he told his story during a press event at the State House. He was flanked by others who had lost loved ones, and also by lawmakers convinced that the survivors should have the same constitutional rights as the people accused of altering their lives.

“For crime victims it is yet another dimension of cruelty to know that the accused has more rights than us, considering they have no right to cause such a deep and lifelong pain,” Jette says.

To fix this perceived imbalance, Jette and legislative leaders are proposing a victims' bill of rights. If approved by the Legislature and voters, it would enshrine in Maine's Constitution victim's rights already codified in Maine law and carried out by victims divisions within prosecutor offices.

That includes notifying alleged victims when the accused is released from custody, of all court and parole proceedings, and allowing those victims to be heard at sentencing. It would also allow victims to refuse to be the subject of deposition or discovery by the accused or his or her attorney.

“More than anything they should be afforded the same rights as somebody that's committed this crime. That's a no-brainer. That's what we're talking about here today,” says Democratic House Majority Leader Erin Herbig, a supporter of the bill.

But it's not necessarily a no-brainer to Portland defense attorney Tim Zerillo.

“It would be a giant step backward if we want to ensure fair proceedings for criminal defendants,” he says.

Zerillo says the first section of the bill requires victims to be treated with “fairness and dignity” and that their safety and privacy are protected. He wonders if such language will allow a prosecutor to intervene during cross-examination and ask the judge for, “I don't know what because it is unlimited,” he says.

Zerillo also envisions further backlogs in the currently jam-packed criminal defense docket.

And law enforcement officials in other states have also cited problems with this kind of law.

“It was sold to the people because obviously everyone wants to help victims. And it was sold to the people as a basic — you know, this is not going to affect the way we do business. And it absolutely has,” says Brian Gootkin, the sheriff for Gallatin County in southwest Montana.

Last year, Montana voters overwhelmingly approved a victims' bill of rights. Like Maine, the state had already codified victims' protections in law. But then a group called Marsy's Law for Everyone swooped in and spent nearly $2.5 million on the ballot campaign to amend the constitution.

There was no organized opposition. Now Gootkin wishes there had been.

“By the time we tried to oppose this thing, it was already its own animal,” he says. “And of course you look like the bad guy because it looks like you're saying no to victims, which is absolutely not the case.”

Gootkin says several problems have surfaced since the passage of the constitutional amendment. For one, it loosely defined victims in such a way that the new constitutionally enshrined protections, notifications, and rights expanded beyond those affected by violent crimes.

“I mean someone can witness a crime and be a victim,” he says.

That's a big problem for Stacy Wesen, the director of Gallatin County Victim Services. Wesen is anticipating an explosion in victims seeking her services, which means she has to hire another counselor, probably another administrator.

“If we don't get extra help and this goes through as planned and we start working these additional cases, we're going to be barely keeping our head above water,” she says.

Gootkin says the same goes for the city attorney's office, the county jail. He says the scenario could play out in Montana's 56 counties if the law isn't fixed.

“And again the state is not ponying up a penny to pay for any of this,” he says.

Like the Montana bill, Maine's bill is pushed by the Marsy's Law for All, an organization founded and financially backed by Henry Nicholas.

Nicholas co-founded the tech firm, Broadcom Corp. His sister Marsy was killed by her ex-boyfriend in 1983. Her mother later said she saw Marsy's killer in a grocery store while he was out on bail.

Nicholas is now a billionaire. He has spent more than $16 million to create victims' bills of rights in the states. He first succeeded in California in 2008, spending nearly $5 million to back a ballot initiative there.

Marsy's Law for All has backed campaigns in at least eight other states and is actively lobbying in statehouses in Maine and elsewhere.

The idea of a victims' bill of rights is popular with voters. Over 60 percent of Montana voters passed their law last year. Marsy's Laws achieved similar margins of support in North Dakota and South Dakota last year.

Those same states are currently experiencing their own implementation problems. Officials in South Dakota went so far as to seal traffic accident reports, and some police departments stopped disclosing the addresses of criminal incidents, all to ensure that victims were protected. Also, the defendants stayed in jail longer because victims couldn't be notified.

Montana lawmakers are now working to tinker with the law. They've delayed implementation until July 1.

Wesen explains why policymakers and voters didn't anticipate the problems.

“Because it really read like something anybody would want to have in their state,” she says.

If two-thirds of the Maine Legislature approves the bill this session, it will go to voters for final ratification in November. Republican Senate President Mike Thibodeau says lawmakers will make sure the bill is crafted so that it can work here.

“We're going to get it right. I'm sure that folks are going to work really hard to make sure it fits Maine values. But make no mistake, this is important,” he says.

So important that the bill has the blessing of the entire legislative leadership.

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