While we have long admired the committed coverage of Chicago’s major newspapers to the issues that concern crime victims, we were all let down by an editorial against HJRCA 29 in the Sun-Times that was filled with mis-information. Below we have copied the text of the editorial, quite obviously prompted by lobbyists for the Defense Bar in Illinois. We have printed their editorial below and responded point by point with our factual corrections and commentary in italics and CAPS. At the end is the response we posted at the Sun-Times website. When we called the author of the editorial to point out the factual errors, he invited us to submit the information, and we await their retractions.
Sun-Times Editorial: Help crime victims, but protect justice
May 12, 2011
Too bad we can’t amend the Illinois Constitution to say: All future amendments must solve more problems than they cause.
TOO BAD WE CAN’T AMEND THE ILLINOIS CONSTITUTION TO SAY: ALL FUTURE EDITORIAL WRITERS MUST RESEARCH THEIR EDITORIALS BEFORE THEY PUBLISH MISTAKES.
If that requirement were in place, a current effort to amend the Constitution to change how our legal system protects victim’s rights would be thrown out promptly.
Victim’s rights are of fundamental importance.
IF THEY ARE “FUNDAMENTAL” THEN THE CONSTITUTION SHOULD MAKE THEM MEANINGFUL AND ENFORCEABLE.
And the criminal justice system should do everything possible to salve a victim’s pain.
At the same time, we urge a healthy skepticism toward many of the more recent efforts to expand the rights of crime victims, as difficult a stand as that may be for the typical politician. A proposal in the name of victim’s rights is like the flag and apple pie. No one wants to be on record against it. But the danger is that all these so-called reforms will multiply to the point that they compromise a defendant’s right to a fair trial and the smooth operations of the courts.
THERE IS NO EVIDENCE ANY WHERE IN THE COUNTRY THAT ANY OF THE RIGHTS PROPOSED “COMPROMISE A DEFENDANT’S RIGHT TO A FAIR TRIAL” OR THE “SMOOTH OPERATIONS OF THE COURTS.” THESE ARE RED HERRINGS, NOT SERIOUS ARGUMENTS GROUNDED IN FACT OR LAW. INDEED, AS A MATTER OF LAW, NO STATE CONSTITUTIONAL AMENDMENT COULD “COMPROMISE” ANY FEDERAL CONSTITUTIONAL RIGHT OF A DEFENDANT BECAUSE OF THE SUPREMACY CLAUSE. MORE IMPORTANTLY, THE RIGHTS PROPOSED ARE NOT NOVEL AND IN FACT ARE FOUND IN THE CONSTITUTIONS OF MANY STATES. THEY HAVE WORKED TO BRING BALANCE TO THE JUSTICE SYSTEM WITHOUT DENYING RIGHTS TO DEFENDANTS AND WITHOUT BURDENING THE COURT SYSTEM. BUT REALLY…WHAT KIND OF AN ARGUMENT SAYS THAT VICTIMS RIGHTS MUST YIELD TO THE “SMOOTH OPERATIONS OF THE COURTS.” ARE THE COURTS NOT THERE TO PROTECT THE RIGHTS OF ALL? DID WE ASK ABOUT THE EFFECT ON “SMOOTH OPERATIONS” WHEN EXTENDING MEANINGFUL RIGHTS TO DEFENDANTS?
Unfortunately, the proposed constitutional amendment now before the state Legislature would do just that, with several provisions that run counter to the ideal of justice for all.
Under the amendment, victims instead of judges essentially would decide whether certain confidential evidence would be presented at a trial.
FALSE. VICTIMS WOULD ONLY HAVE THE RIGHT TO PREVENT THE DISCLOSURE OF INFORMATION THAT IS “PRIVILEGED OR CONFIDENTIAL BY LAW.” OBVIOUSLY SUCH LANGUGAE DOES NOT ELIMINATE THE OVERSIGHT OF JUDGES.
A time-tested rule dating to the colonial era that bars witnesses from listening to each other’s testimony (and perhaps then adjusting their own) would be tossed out.
THIS “TIME TESTED RULE” DOES NOT APPLY TO DEFENDANTS, FOR GOOD REASON, NOR SHOULD IT TO VICTIMS. THE RULE HAS BEEN ABANDONED BY THE U. S. CONGRESS, MANY STATES INCLUDING MOST RECENTLY CALIFORNIA, AND HAS BEEN THE LAW IN MANY STATES FOR DECADES. NO DEFENDANT HAS EVER HAD A CONVICTION OVERTURNED SIMPLY BECAUSE OF THE PRESENCE OF THE VICTIM.
And victim’s impact statements, now limited to serious crimes, would be expanded to all crimes. Do we really want to waste court time on testimony about how the theft of a TV affected the victim?
WE GIVE THE DEFENDANT THE RIGHT TO BE HEARD AT SENTENCING IN EVERY CASE. WHAT MORAL AUTHORITY COULD THERE POSSIBLY BE FOR DENYING THE VERY SAME RIGHT TO THE VICTIM?
Then there’s the provision of the amendment that would define crime victims as anyone “directly and proximately harmed,” legal guardians, representatives of a victim’s estate, family members or “other persons appointed as suitable by the court.” There wouldn’t be room in the courtroom for the judge or the jury.
WRONG. THIS IS THE VERY DEFINITION ADOPTED BY THE CONGRESS FOR ALL FEDERAL CRIMES. IT WORKS WELL. FEARS OF “NO ROOM IN THE COURTROOM” ARE NOT BASED IN REALITY.
A reasonable complaint lies at the heart of the proposed amendment, which would have to be approved by both houses of the Legislature and then in a statewide referendum. Section 8.1 of the Illinois Constitution’s Bill of Rights enumerates crime victim’s rights, but it also contains some legalese that in effect means those rights can’t be enforced. Victim’s rights advocates who object to that clause have a point.
But a constitutional amendment should be tersely worded so that courts can interpret it wisely. The U.S. Bill of Rights guarantees freedom of religion and freedom of speech in just 26 words. But the victim’s rights amendment has well over 600. If any of that language creates unintended consequences in practice, the Legislature won’t be able to fix it. Another constitutional amendment would have to be ordered up.
THE AMENDMENT MAKES THE RIGHTS BOTH MEANINGFUL AND ENFORCEABLE. THE LANGUAGE HAS BEEN TESTED IN OTHER STATES.
Crime victims don’t always understand that legal protections exist to protect the innocent, not to coddle criminals.
THE AMENDMENT TAKES NO RIGHTS AWAY FROM DEFENDANTS.
They don’t always understand when it’s better to offer a plea bargain than risk going to trial.
THE AMENDMENT GIVES VICTIMS A VOICE, BUT NOT A VETO OVER PLEA BARGAINS.
That’s why we have professional prosecutors, who in general try hard to accommodate victims, although in a large system with so many moving parts they are bound to slip up.
When the evidence against a suspect doesn’t support a criminal charge, it should be dismissed. As it is now worded, the proposed crime victim’s amendment deserves the same fate.
WHEN THE EVIDENCE DOES NOT SUPPORT THE RUSHED CONCLUSIONS OF EDITORIAL WRITERS THOSE CONCLUSIONS SHOULD BE ABANDONED BY THE WRITER…AND REJECTED BY THE READER.
And our on-line response:
While we appreciate the Sun Times affirming the importance of victims rights and acknowledging that the current language in the Illinois Constitution is unenforceable, we are profoundly concerned with the many and serious factual errors in this editorial.
We recognize the source of the criticism – the words of this editorial echo points made recently by the defense bar lobbyist in Springfield who probably spoke to Tom Frisbie of the Sun Times who wrote this editorial.
Defense Attorneys have been routinely and illegally excluding victims from courtrooms for years because they do not want the jury seeing the grieving parents of a murdered child, or the anguished sexual assault victim. Defense Attorneys have been unethically putting victims on the witness list for years for no good reason – just to create the best possibly climate in the courtroom to get their clients off.
The editorial is factually wrong in the following points:
1. This measure does not EXPAND victims rights, it only makes the current rights enforceable.
2. It absolutely does NOT give victims the right to determine evidence instead of the judge.
Many of the top legal experts in this state and nation, including Attorney General Lisa Madigan, have been working hard for years to make the minor language changes needed to allow victims the ability to ask the judge to enforce their rights before the court.
Victims rights to be heard, to be notified, to be protected, to consult with prosecutors, to be kept safe, in NO way interfere with the rights of the defendant.
We would appreciate the Sun Times immediately correcting the factual errors in this editorial.
3. Additionally, the editorial is factually wrong that the proposed amendment would stop the ability of judges to sequester victims if their presence in the court is found to be materially damaging to evidence.
4. Also, the editorial is wrong to classify victims of property theft as being undeserving of having their victims rights protected. ALL crime victims have these rights and the Constitution does not discriminate between more serious crimes and less serious crimes. Constitutions should never set up those kinds of class discriminations – “your rights are not as important as my rights”.
Wording count is simply not an issue in the Constitution. There are many “wordy” provisions, because the correct definitions are vital in the Constitution. After 20 years of living with the current wording, courts all over the state, victims, prosecutors and attorneys are finding the current wording utterly inadequate. This corrects that problem.
We are actually pretty shocked that the Sun Times did not research their legal assessment of the proposed measure with the Attorney General’s office who sponsors this measure, or to actually talk to any of the legal experts who have been working on this measure for years. We look forward to sitting down, if necessary with Mr. Frisbie with attorney experts and correcting the erroneous assessment.