<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:28384.wais]
IMPLEMENTATION OF THE
CRIME VICTIMS' RIGHTS PROVISIONS
OF THE JUSTICE FOR ALL ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 21, 2006
__________
Serial No. 109-144
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
30-384 WASHINGTON : 2006
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Kimberly Betz, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
JUNE 21, 2006
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 3
WITNESSES
Ms. Debra Culberson, Victim, Blanchester, OH
Oral Testimony................................................. 5
Prepared Statement............................................. 8
Ms. Mary Lou Leary, Executive Director, National Center for
Victims of Crime
Oral Testimony................................................. 10
Prepared Statement............................................. 12
Ms. Julie Goldscheid, Associate Professor, CUNY School of Law
Oral Testimony................................................. 14
Prepared Statement............................................. 16
Margaret A. Garvin, Esq., Director of Programs, National Crime
Victim Law Institute
Oral Testimony................................................. 20
Prepared Statement............................................. 23
APPENDIX
Material Submitted for the Hearing Record
Response from James H. Clinger, Acting Attorney General, to Post-
Hearing Questions.............................................. 45
Response from James C. Duff, Secretary, Judicial Conference of
the United States, to written questions from Chairman Chabot... 56
Written Statement of the Honorable Collene Thompson Campbell..... 63
Federal Sentencing Statement of the Honorable Collene Thompson
Campbell to U.S. District Judge Cormac J. Carney during the
James P. Lewis sentencing...................................... 64
United States of America v. United States District Court for the
Central District of California, Petition for Writ of Mandamus
to the United States District Court for the Central District of
California..................................................... 68
IMPLEMENTATION OF THE CRIME VICTIMS' RIGHTS PROVISIONS OF THE JUSTICE
FOR ALL ACT
----------
WEDNESDAY, JUNE 21, 2006
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:05 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chairman of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order.
I would like to welcome everyone to this afternoon's
hearing on the Subcommittee on the Constitution. This
particular hearing is on the Implementation of the Crime
Victims' Rights Provisions of the Justice for All Act.
The ``Scott Campbell, Stephanie Roper, Wendy Preston,
Louarna Gillis, Nila Lynn Crime Victims Rights Act,'' which
constitutes title I of the Justice for All Act, was the final
product of years of effort on the part of a number of us here
in the House to pass another measure of the Crime Victims'
Rights Constitutional Amendment of which--I sponsored that
particular constitutional amendment back in the 106th, 107th
and 108th Congresses. When it became clear that passage of a
constitutional amendment was not possible in 2004, we worked to
create legislation that would protect crime victims' rights by
statute in the law if we couldn't do it by constitutional
amendment.
That legislation, the Crime Victims' Rights Act, was the
first Federal law to truly provide crime victims with dignity
and respect through an established and enforceable set of
rights. Those rights include the right to be reasonably
protected from the accused, the right to be notified of and not
excluded from public proceedings involving their case, the
right to be heard at release, plea and sentencing proceedings,
the right to confer with a prosecutor, the right to full and
timely restitution, the right to be free from unreasonable
delays in proceedings, and the right to be treated with
respect.
The law allows a victim, or the Government, after a Federal
district court denies its request for appropriate relief, to
apply for a writ of mandamus to a court of appeals to enforce
these rights, ensuring that justice is reserved not only for
the accused, but also to the thousands of persons whose lives
have been impacted by crime, the crime victims and their
families.
The Crime Victims' Rights Act is almost 2 years old now,
and we're starting to see its impact in the Federal system. In
January, the Ninth Circuit Court of Appeals ruled in Kenna v.
United States District Court for the Central District of
California that crime victims have an affirmative right to
speak and not just submit written statements at the sentencing
phase of a criminal case. This marked the first time that a
circuit court of appeals had utilized the mandamus provisions
of the act to compel a district court to recognize a victim's
rights.
The Ninth Circuit also announced that having failed to take
up and consider Mrs. Kenna's petition of mandamus within the
mandated 72-hour time frame, it was instituting new procedures
to ensure that future Crime Victims' Rights Act mandamus
positions were handled in a timely manner.
Recently, the Justice Department promulgated rules pursuant
to the act to help ensure that victims' rights are effectively
addressed by Federal prosecutors. This includes the creation of
an Office of Victims' Rights ombudsman to consider
administrative complaints against the executive branch
officials for failing to fully enforce the rights guaranteed by
the Crime Victims' Rights Act.
In addition, the Office of Victims of Crime at the
Department of Justice is preparing to award a grant of $2
million this year to the National Crime Victim Law Institute to
provide direct legal representation on behalf of crime victims
in the Federal system.
Perhaps most notably, the Department of Justice identified
90 percent more victims in criminal cases than it had in the
year prior to the passage of the Crime Victims' Rights Act, and
sent out more than 6 million notices of proceedings to victims
in fiscal year 2005, more than twice what it had done in the
year prior to the passage of the act.
However, the Crime Victims' Rights Act is just part of the
story of how the criminal justice system affects crime victims.
For example, I worked with Chairman Sensenbrenner and others to
insert a provision in the Justice for All Act, section 308,
that would provide funds to assist States and localities in
testing the DNA of missing persons and unidentified human
remains. We worked on this provision, and at the request of a
woman who happens to be from our area, from the city of
Cincinnati--Ms. Debra Culberson, who is with us today.
Ms. Culberson lost her daughter, Carrie, to a terrible
murder. As Mrs. Culberson will testify, the perpetrator is
behind bars, but they have not been able to locate or identify
her daughter's remains because the murderer refuses to tell
authorities where he hid her.
Because of this, Mrs. Culberson has been very diligent in
pursuing a national DNA database to help identify missing loved
ones and thereby provide at least some closure to these
families. I thank and commend her for her work, and she will be
testifying here shortly.
Thanks, in part, to her efforts, the National Institute of
Justice has provided over $2 million for the DNA testing of
unidentified remains, as well as additional funds for an
inventory of all unidentified remains in the country. It has
also provided funds for creating and distributing a uniform kit
for collecting DNA samples from family members, which will make
identification of unidentified remains easier.
This hearing is the product of several months of work that
many of us have worked on together and met with or talked to
victims and representatives of crime victims in the community,
the Department of Justice and the Federal court system to see
how the Justice for All Act is being implemented. As a result,
we decided to hold this hearing to discuss the act and to
introduce legislation to help crime victims collect
restitution.
Although the right to full and timely restitution was part
of the Crime Victims' Rights Act, we learned that collection
rates are very low, and we hope to increase collection efforts
through a bill that will be drawn up this week.
The testimony of our witnesses today, as well as written
statements that will be submitted by the Department of Justice
and the Administrative Office of the U.S. Courts, will show
that much progress has been made.
Despite these success stories, much remains to be done to
ensure that crime victims' rights are preserved. For example,
we'll be submitting for the record the statement of Ms. Colleen
Campbell, who, thanks to the Victims' Rights Act, was able to
speak at the sentencing last week of the man that defrauded her
and her husband, as well as approximately 1,600 other persons,
of almost $315 million. Her ability to speak at sentencing was
perhaps made poignant by the fact that the Crime Victims'
Rights Act was named in part for her son, Scott Campbell, who
was murdered.
Unfortunately, the rights afforded to her by the Crime
Victims' Rights Act are not afforded by all States, and
therefore she was routinely excluded from the trial of her son,
as she has been from numerous proceedings involving the killing
of her brother and sister-in-law who were murdered in a
separate incident.
It's because of policies like this that we ultimately hope
to pass a Crime Victims' Rights Constitutional Amendment so
that victims throughout the United States both at the State and
Federal level can be treated with dignity, the dignity that
they deserve.
In the meantime, we're encouraged that the benefits of the
Crime Victims' Rights Act at the Federal level will promote
efforts to see that these rules are applied in all cases,
including those in State court. And we will continue to work
with those in the crime victims community to ensure that crime
victims are treated in the best manner possible by the criminal
justice system.
And I apologize for going over a little bit longer than I
normally do. I try to keep my 5 minutes to 5 minutes, but this
is an issue that I care very much about, and I know everybody
here does.
So I now will yield to the gentleman from New York, Mr.
Nadler, the Ranking Member of this Committee, for the purpose
of an opening statement.
Mr. Nadler. Thank you. As a Ranking Member, I demand equal
time, but I won't take it.
Thank you, Mr. Chairman. I want to join you in welcoming
our witnesses here today.
As the Ninth Circuit recently observed, there was a time
when victims of crime were expected to behave like good
Victorian children, seen but not heard. Those days, I think we
all agree, are justifiably and, thankfully, over.
Victims of crime are now able to be heard in court, and
their voices are heard in the halls of Congress and in our
State legislatures, demanding better services to help them deal
with the devastating impacts of crime. Whether it is financial
loss, physical injury or psychological harm, our criminal
justice and social service agencies must continue to become
more responsive to the needs of crime victims.
What happens in the court room is important. Punishing
wrongdoers and ensuring that they cannot harm others is a key
role of the justice system, but victims' needs extend far
beyond the walls of our courtrooms and our prisons.
I look forward to a careful examination of the assistance
we provide the crime victims, of which the Justice for All Act
is only one part. Providing adequate funding for the services
we have promised and expanding that assistance where necessary
is of paramount importance. I hope we will continue this
inquiry to the broader range of victims' issues and services.
We have made much progress, unquestionably, I think it is
incumbent on us to do much more.
I again want to join you in welcoming our witnesses. I know
that the shifting congressional calendar has proved somewhat
frustrating for our witnesses, and I greatly appreciate your--
now speaking to the witnesses--flexibility and willingness to
be here, when we finally can do it, to assist us in our work.
I thank you, and I thank the Chairman.
Mr. Chabot. I thank the gentleman for his statement.
Do any other Members wish to make a statement? If not,
we'll go ahead and introduce the witness panel. And we have a
very excellent panel here this afternoon. We appreciate you all
coming.
Our first witness will be Mrs. Debbie Culberson, who is
from Blanchester, Ohio. Ms. Culberson is here as an advocate
for her daughter, Carrie Culberson, who was murdered by an ex-
boyfriend in 1996. Although her daughter's killer has been
convicted and remains in jail, he has refused to tell
authorities where he put Carrie's body.
Because of Mrs. Culberson's tireless advocacy, we inserted
section 308 into the Justice for All Act which provides funds
for States and localities to do DNA testing on unidentified
human remains.
And we again thank you very much, Ms. Culberson, for being
here. And I want to again extend our sincerest sympathies for
the loss, and for all the members of the panel that have had
tragedies occur in their families.
It's been an honor to get to know Mrs. Culberson over the
years and to be able to try to help out in some small way, and
we're going to continue to try to do that.
Our second witness is Mrs. Mary Lou Leary, Executive
Director of the National Center for Victims of Crime. Prior to
serving in this capacity, Mrs. Leary was Senior Counsel to the
U.S. Attorney in the United States Attorney's Office for the
District of Columbia. She has held numerous positions at the
U.S. Department of Justice, including acting as Assistant
Attorney General for the Office of Justice Programs and Deputy
Associate Attorney General.
Ms. Leary has a B.A. Degree from Syracuse University and an
M.A. From Ohio State University and a J.D. From Northeastern
University School of Law.
I would also like to add that Ms. Leary's staff at the NCVC
were very helpful in providing assistance to this Committee
when it was working on the Justice for All Act in the 108th
Congress, and we thank you very much for that cooperation.
Our third witness is Professor Julie Goldscheid, Associate
Professor at City University of New York Law School. Professor
Goldscheid holds a B.S. From Cornell and an M.S.W. from Hunter
College School of Social Work and a J.D. from New York
University School of Law. She has written widely about violence
against women and is active in a number of organizations,
including serving as General Counsel of Safe Horizon, an
organization committed to victim assistance, advocacy and
violence prevention.
And we welcome you here this afternoon, Professor.
Our fourth and final witness is Ms. Meg Garvin, the
Director of Programs for the National Crime Victim Law
Institute. In that capacity, Ms. Garvin wrote an amicus brief
in the Kenna case, the first case in which a circuit court of
appeals utilized the mandamus provision of the Crime Victims'
Rights Act.
And we welcome you this afternoon, Ms. Garvin.
Again, we thank all of our witnesses and look forward to
hearing your testimony here this afternoon. And before we
start, I would like to bring to your attention the lighting
system that we have here. We basically have what is called the
5-minute rule. The green light will remain on for 4 minutes,
the yellow light will come on and you have 1 minute to wrap up.
When the red light comes on, we would like you to stop. I
won't gavel you down immediately, but we'd like you to try to
wrap up as close to that, if at all possible. We hold ourselves
to the same 5-minute rule here as well.
And it's the practice of the Committee to swear in all
witnesses appearing before it, so if you would all please stand
and raise your right hand.
[Witnesses sworn.]
Mr. Chabot. All witnesses have indicated in the
affirmative. And we'll now begin with our first witness.
So, Ms. Culberson, you're recognized for 5 minutes. Now you
will need to pull the mike to you, and there's a little button
on there to turn it on; we won't start the time until you've
actually begun.
You might want to pull the whole box a little closer to you
there.
TESTIMONY OF DEBRA CULBERSON, VICTIM,
BLANCHESTER, OH
Ms. Culberson. Thank you for allowing me to be here before
you today, Congressman Chabot, Ranking Member Nadler and
Committee Members. I'm asking for your help in getting
information out to all who could be affected by this issue.
My daughter, Carrie, was kidnapped and murdered by her ex-
boyfriend, Vincent Doan, in August 1996. He was convicted of
her murder in `97, even though we have not yet found her
remains. His brother, Tracy Baker, was indicted on two charges
of obstruction of justice, two charges of tampering with
evidence, for which he was found guilty. He was also charged
with gross abuse of a corpse and found not guilty because there
was no body. He was sentenced to 8 years in prison and was just
recently released.
His father, Lawrence Baker, was indicted on the same
charges and was found not guilty. Also indicted on three felony
counts was the former Blanchester Chief of Police, Richard
Payton. These charges were pled down to misdemeanor charges,
and he was found guilty of two charges of dereliction of duty.
He was then given a year's back pay, 960 sick hours, which took
him up to full retirement with full benefits, which amounted to
$86,000, for his role in my daughter's disappearance.
Eight years later, on April 30 of 2004 at 2 p.m., my
daughter Christina and I were preparing for a memorial
dedication, which was the non-economic term that was to be met
for the lawsuit against the Village of Blanchester. This
dedication for Carrie was scheduled at 4 p.m. I received a call
from a reporter that law enforcement was a mile away from my
home digging up a concrete floor searching for my daughter,
Carrie.
The dedication was cancelled, and we spent the next 13 days
out on the road, including Mother's Day, as they continued
their search for Carrie. There were three county sheriff's
offices involved, two county prosecutors, the State patrol,
FBI, the coroner, a forensic anthropologist, seven different
cadaver dogs, and they all worked diligently to find Carrie.
Tips claimed that Carrie was dismembered and put into a wood-
chipper, and that concrete was poured over her. This is what
led the authorities to the barn.
Our search for Carrie continues. Over the last 9\1/2\
years, we continue to get leads, most of which are rumors, on
the whereabouts of Carrie. Various rumors circulated that she
was dismembered and pieces were scattered in the Ohio River,
along miles of the interstate; and also that she was--a chain
saw was used to cut her up, and she was fed to the family bear;
and then this bear was ground up and she was--they ate the
hamburgers and called them Carrie burgers.
So, as I said, I've had attorneys who would call me and say
that their clients would give us information if I would--if we
could help them get out of trouble.
I've talked to law enforcement. I asked them, what do you
do when you find human remains? And to my complete shock, I
have been told that we don't know what to do with them, so
they're put in a box and put on a shelf. And this is the result
of having no nationwide protocol for dealing with unidentified
human remains.
There is currently no mandate for law enforcement,
coroners, medical examiners to test these remains. This leads
to my concern. In March of `97 we had a major flood on the Ohio
River. If, as we have been led to believe, Carrie's remains
were thrown into the Ohio River, piece by piece, her remains
could have washed ashore anywhere from Cincinnati to the Gulf
of Mexico. And I visualize my daughter's remains in one of
those dusty boxes marked unknown simply because there is no
protocol.
If you get on the Web site for the National Center for
Missing and Exploited Children, you will see pages of
unidentified remains. Moneys are being spent on the Innocent
Project, which will collect DNA from all convicted felons. It
could help solve crimes and prove innocence or guilt. This is
great, but because the dead don't vote or pay taxes, there is
no priority in identifying these remains.
The unidentified dead have remained unidentified for a
number of reasons; mainly it is the result of low priorities,
lack of education and development of protocols used in the
discovery of human remains, and, as everywhere, funding.
Investigations would probably determine that most of these
remains are victims of homicide. Experts estimate that between
40 and 50,000 unidentified human remains are in our country.
Given today's technology, this is totally unacceptable for a
civilized nation to not have a protocol and treat the remains
of its citizens in a more appropriate way.
NCIC Unidentified Persons Database has been in existence
since the mid `80's. It has a total of 5,783 entries as of
April of 2005, this is just over 10 percent of the estimated 40
to 50,000 unidentified dead that has been reported nationally.
Since April of 2005, nearly 98,000 entries are in the database,
of which more than 25 percent are considered missing,
abductions or homicides.
Currently, there are only six States that mandate testing;
those States are California, Florida, New York, Ohio,
Pennsylvania and Texas. These States account for most of those
entries.
I, along with so many others, have not been able to go
through the natural grieving process after the loss of a loved
one. This is essential to the healing process that would
normally follow. Not knowing what happened or where our loved
ones are, we are left to mourn and wonder for the rest of our
lives.
I went to the Justice Department 3 years ago to ask for
help in the efforts to require mandatory testing, and the
creation of a national repository for the missing and
unidentified dead. I was told that there was nothing they could
do for me at this time because they were going to send out a
questionnaire to the coroners and medical examiners, and this
was to take about 18 months. But as a result of that meeting, I
was asked to attend meetings for the National Missing Persons
Task Force sponsored by NIJ.
I have met many experts or stakeholders who are passionate
about this, as I am, but have also found out that there are
duplicate grants given to study the same issue. Many of these
same experts serve on the National Center for Forensic Science,
which is a registry for missing persons and unidentified dead;
the National Institute of Justice, which put together model
legislation--or was put together--missing persons and
unidentified dead; and the International Homicide Investigation
Association, and their group's recommendations for identifying
unidentified persons.
So the same information is being disseminated to these same
groups by the same people. Essentially, to me, this is a
duplication of services and money.
I've been working with Congressman Chabot for the past 2\1/
2\ years. He assured me that he would do what he could. He has
kept in constant contact with me and continues to help move
forward. We have made some progress, but the Nation needs to
know that this is a national problem.
The unidentified dead didn't receive any consideration
until the need to identify the remains of those who lost their
lives, such as in the attack of David Koresh's Branch Davidians
in Waco, Texas. David Koresh was identified by DNA.
Then, in the attacks of the Murrah Federal Building in
Oklahoma City, and the Twin Towers in New York on September
11th, and most recently, Hurricane Katrina, DNA was used to
identify most of those remains. DNA was used to identify the
90-year-old remains of an unknown child who died in the sinking
of the Titanic.
The mother of a soldier received information that it could
possibly be her son in the Tomb of the Unknown Soldier. And we
all know how sacred this gravesite has become, because we have
all watched our Presidents lay a wreath there for many years.
But the mother needed to know if it was her son. Through DNA
testing, it was determined that it was, indeed, her son,
Mr. Chabot. Ms. Culberson, it won't get much redder.
Do you have--could you wrap it up maybe; and I can get into
it with questions maybe to----
Ms. Culberson. Sure. Well, essentially what I'm asking for
is to mandate the testing of human remains in order to keep the
coroners and medical examiners from destroying these remains;
and also, to have the testing entered into a national database,
and then have the family reference samples in order to match
with these remains.
So it just--that's basically why I'm here today.
Mr. Chabot. Thank you very much. And I apologize for
cutting you off.
The bells that went off, we know we have some votes coming
up, and we're going to try to get as much in as we can before
the votes. And if we can get into--if there were some things
you didn't get into, I can get to them in the questions.
Ms. Culberson. Surely. I apologize.
[The prepared statement of Ms. Culberson follows:]
Prepared Statement of Debra Culberson
Congressman Chabot, Ranking Member Nadler, and Committee Members,
I am asking for your help in getting information out to all who
could be affected by a problem I have encountered.
My daughter, Carrie Culberson, was kidnapped and murdered by her
ex-boyfriend, Vincent Doan, in August of 1996. He was convicted of her
murder in July of 1997, even though we have not found her remains. His
brother, Tracey Baker, was indicted on two charges of obstruction of
justice and two charges of tampering with evidence, for which he was
found guilty. He was also charged with gross abuse of a corpse and
found not guilty because there was no body. He was sentenced to eight
years in prison and was just recently released. His father, Lawrence
Baker was indicted on the same charges but was found not guilty. Also
indicted on three felony counts was the former Blanchester Chief of
Police, Richard Payton. These charges were pled down to misdemeanor
charges and he was found guilty on two charges of dereliction of duty.
He was then given a year of back pay and 960 hours of sick pay which
took him up to full retirement with full benefits which amounted to
$86,000 for his roll in the disappearance of my daughter.
Eight years later, on April 30, 2004, at 2:00 pm my other daughter
Christina and I were preparing for a memorial dedication (one of the
non economic terms of a law suit against the Village of Blanchester)
for Carrie scheduled at 4:00pm. I received a call from a reporter that
law enforcement was a mile away from my home digging up the concrete
floor of a barn searching for Carrie. The dedication was cancelled and
we spent the next thirteen days (including Mother's Day) on the road
watching as three county sheriff's depts., two county prosecutors,
State Patrol, FBI, the coroner, a forensic anthropologist and seven
different cadaver dogs worked diligently to locate the remains of
Carrie. Tips claiming Carrie was dismembered, put into a wood chipper
and concrete poured over her is what led authorities to this barn. Our
search for Carrie's remains continues.
Over the past nine and half years we have continued to get leads
(most of which are rumors) on the whereabouts of Carrie remains.
Various rumors circulated that she was dismembered and the pieces
scattered in the Ohio River or along miles of the interstate. Others
reported that a chain saw was used to dismember the body and the
remains fed to the family BEAR kept at the junkyard. The bear was then
killed, ground up and made into ``Carrie burgers''. I have had
attorneys call me and say that their client could give information of
Carrie's whereabouts if we would make a deal with them.
I have talked to law enforcement and asked, ``What do you do when
you find human remains?'' To my utter shock and disbelief the answer
has been, ``We don't know what to do with them, so they are put in a
box and put on a shelf''. This is the result of having no nation-wide
protocol for dealing with unidentified human remains. There is
currently no mandate for law enforcement, coroners and medical
examiners to test these remains. This leads to my concern. In March of
1997, we had a major flood on the Ohio River. If, as we have been led
to believe, Carrie's remains were thrown into the Ohio River piece by
piece, in August of 1996, her remains could have washed on shore
anywhere from Cincinnati to the Gulf of Mexico. I visualize my
daughter's remains in one of those dusty boxes marked ``unknown''
simply because there is no protocol.
If you get on the website of National Center for Missing and
Exploited Children, you will see pages of unidentified remains. Monies
are being spent on the ``Innocent Project'' which will collect DNA from
all convicted felons. It could help solve crimes and prove innocence or
guilt. This is great, but, because the dead don't vote or pay taxes,
there is no priority in identifying these remains. The unidentified
dead have remained unidentified for a number of reasons, mainly it is
the result of low priorities, lack of education in development of
protocols used in the discovery of human remains and as every where
funding. Investigation would probably determine that most of these
remains are the victims of homicide. Experts estimate there are between
40,000 and 50,000 unidentified human remains in our country. Given
today's technology it is totally unacceptable for a civilized nation
not to have a protocol and treat the remains of its citizens in a more
appropriate way.
NCIC Unidentified Persons Database has been in existence since the
mid-eighties. It had a total of 5,783 entries as of April 2005 This is
just over 10 % of the estimated 40 to 50 thousand unidentified dead
that has been reported nationally. Since April of 2005 nearly 98,000
entries are in the database, of which more than 25% are considered
missing, abductions, or homicides. There currently there only six
states that mandate testing of remains. Those states are California,
Florida, New York, Ohio, Pennsylvania and Texas. These states account
for most of the entries.
I, along with so many others, have not been able to go through the
natural grieving process after the loss of a loved one. This is
essential to the healing process that would normally follow. Not
knowing what happened to, or where our loved ones are, we are left to
mourn and wonder for the rest of our lives.
I went to the Justice Department three years ago to ask for help in
the efforts to require mandatory testing and the creation of a national
repository for the missing and unidentified dead. I was told there was
nothing they could do to help at that time because they were going to
send out a questionnaire to the coroners and medical examiners. This
was to take about eighteen months. But, as a result of that meeting, I
was asked to attend meetings for the National Missing Persons Task
Force sponsored by NIJ. I have met many experts (stakeholders) who are
as passionate about this as I am. But, I have also found out that there
are duplicate grants given to study the same issue. Many of the same
experts serve on The National Center for Forensic Sciences-National
registry for Missing Persons and Unidentified Dead, National Institute
of Justice-Model legislation for Missing Persons and Unidentified Dead,
and the International Homicide Investigator Association-Recommendations
for Identifying Unidentified Persons. So, the same information is being
disseminated to and by these groups. Essentially, this is duplication
of services and monies spent.
I have been working with U.S. Congressman Steve Chabot for the last
two and a half years. He has assured me that he would do what he could.
He has kept in constant contact with me and continues to help move
forward. We have made some progress but, the nation needs to know that
this is a national problem. The unidentified dead didn't receive any
consideration until the need to identify the remains of those who lost
their lives in the attack on David Koresh's Branch Davidian Complex in
Waco, Texas. David Koresh was identified through DNA. Then, in the
attacks on the Murrah Federal Bldg. in Oklahoma City, Oklahoma and the
Twin Towers in New York on September 11th, and most recently Hurrican
Katrina. DNA was used to identify many of those remains. DNA was used
to identify the 90 year old remains of an unknown male child who died
in the sinking of the Titanic. The mother of a soldier received
information that it could possibly b her son's remains in the ``Tomb of
the Unknown Soldier''. We all know how sacred this gravesite has become
because we have watched our Presidents lay a wreath there for many
years, but the mother needed to know if it was her son. Through DNA
testing it was determined that it was indeed her son.
DNA may be the only way that I will be able to find my daughter.
But unless there is mandatory testing of the unidentified dead on a
national level and a national repository for those test results that is
accessible to every state and all stakeholders, the unidentified dead
will remain unidentified. The stakeholders include coroners, medical
examiners, forensic pathologists, forensic anthropologists, forensic
odontologists and law enforcement. We also need to educate the families
of missing persons that they can go to a local FBI office or their law
enforment agency to have a DNA mouth swab taken and the results entered
into this national database as a family reference sample. Most of those
who have missing loved ones don't know what they can do or where to go
for assistance.
DNA may not be the only answer, but once there are no physical
descriptors such as eye color, hair color, tattoos, etc. remaining to
identify the dead, DNA is the last resort.
We need to have mandated testing of any unidentified dead, a
national repository for these test results for all states to be able to
access. And we need to educate the law enforcement, all stakeholders
and the public. We need to make the public aware of this national
problem.
This is why I am asking for your help. I can put you in touch with
people who can speak to you on a professional level. I am just a mother
with only a high school education and know little about the politics
but I have learned a lot in the last nine and a half years only because
of the tragic death of my daughter. I have gone through five trials and
have learned more about the judicial system than I ever wanted to know.
So, now I am learning the politics of what needs to be done and how
to get it done. And you can't get it done without the help of others. A
phrase I like and try to live by is ``None of us is as good as all of
us.'' by Ray A. Kroc.
Thank you.
Mr. Chabot. Ms. Leary, you're recognized for 5 minutes.
TESTIMONY OF MARY LOU LEARY, EXECUTIVE DIRECTOR, NATIONAL
CENTER FOR VICTIMS OF CRIME
Ms. Leary. Good afternoon, Chairman Chabot, Ranking Member
Nadler and Members of the Subcommittee. I'm Executive Director
of the National Center for Victims of Crime; we're a private
nonprofit here in D.C. We work nationwide, and have been
working for 20 years now to advance the rights and the
interests of crime victims.
Among our members are victim--witness assistance unit
personnel in U.S. attorneys' offices across the country, and
the victim specialists at the FBI offices across the country as
well.
I appreciate the opportunity to testify before you today on
the Justice for All Act. As you know--and thank you for your
compliment--we did support this act initially; and we have
monitored its implementation, although it's kind of in its
early stages.
The act provided clear and--most importantly, I think--
enforceable rights to all direct victims of crime at the
Federal level. And even though many of these rights existed
previously, they were under title 42 of the Federal Code, the
Public Health and Welfare Title. So judges and prosecutors were
basically clueless about the existence of these rights in the
Federal Code. At the same time, the act strengthened many of
those rights, and I think that was very important.
The act addressed enforcement of Federal victims' rights in
some significant ways. Attorneys, prosecutors, and victims were
given legal standing; it provided procedures for seeking a writ
of mandamus to enforce the rights. There is nothing that will
get--as a former Federal prosecutor, I can tell you there is
nothing that would get my attention faster than thinking a writ
of mandamus may be filed in a case where I didn't honor
victims' rights. And the act also required the Attorney General
to develop training, guidelines, disciplinary procedures and so
on.
In my view and the view of the National Center, moving the
rights of crime victims to the Criminal Code and adding
remedies for the violation has had a really significant impact
on the Federal criminal justice system. Really, before this
act, all too often the crime victims' rights were viewed as
ancillary to the prosecutorial efforts; but we have been told
by our members at the National Center that the effect of this
act really has been, and they said, quote, ``It's ended some of
the hesitancy about victims' rights that attorneys may have had
in the past,'' and that attorneys are asking more questions of
the victim/witness staff and, most importantly, really making
serious efforts to ensure that crime victims are provided their
rights.
One of our members, who is a victim advocate, reported that
implementation has resulted in management in Federal
prosecutors' offices placing a lot more emphasis on the
victims' rights both in training meetings and in in-house
memos, and that attorneys are actually taking a more proactive
approach to the issue rather than waiting for the victim
advocate to come by and knock on the door and say, listen, you
need to take care of these victims.
Most importantly, the act also provided the funding that
Congress recognized would be crucial if you're going to
effectively implement the act. It authorized additional moneys.
And when I say ``additional,'' I mean in addition to funding
already provided through the VOCA Act. That money was to
augment victim/witness programs and to enhance the Federal
victim notification system.
We've heard from many of our members that the Justice for
All Act has made a big difference in proceedings and in the
lives of particular victims. I'll give you a couple of examples
that our members provided to us.
In one case, a court failed to provide notice of a
sentencing date to the attorney and to the victim advocate in
time for them to notify the victim, and they were able to get
that sentencing continued to allow the victim to be notified
and attend. And in another, the victim drove literally hundreds
of miles to attend a sentencing, only to be told he couldn't
address the court. But when the prosecutor stood up and talked
about the Justice for All Act, the judge then allowed the
victim to be heard.
Those are just a couple of examples. One advocate said this
law was much needed and very late.
But I want to address three issues that I think I would ask
this body to take note of if the act is really to fulfill its
promise of justice. First, demands on the victim/witness staff
and prosecutors' offices throughout the country have
significantly increased, as was anticipated. Actually, the
number of identified victims and resulting notification has
doubled since implementation of the act.
Unfortunately, it appears that the additional funding that
was authorized to meet this increased demand has not been
provided. Now we end up with a talented, dedicated victim/
witness staff being turned into data entry clerks because of
the notification obligations.
That money needs to get out there so that they can hire in
Federal prosecutors' offices other low-level staff who can do
the data entry, meet that obligation of notification; and let
victims of Federal crimes be served by victim advocates the way
they should be.
Secondly, we need to see the money that was authorized for
the victim notification system go out there in order to ensure
that that system operates efficiently. And that will also take
pressure off the victim advocates.
I would also point out that the Justice for All Act did not
include victims' rights at the investigatory stage in its
language; and it's our understanding that the Department of
Justice's interpretation is that these rights do not apply at
the investigatory stage. I would not want to be the one to tell
a victim, you're not really a victim until the prosecutor
decides that an indictment is going to be filed in this case.
The language in title 42, section 10607, is mandatory
language, and it says that a victim shall be notified as soon
as is practicable after the victim is identified. Surely a
victim deserves at least to be notified that an investigation
is ongoing, or that we have determined that we are not going to
file charges in this particular case.
I don't understand, and I would ask this body to look into,
how you square title 42 with a position that the rights do not
apply at the investigatory stage.
And finally, there is an issue that needs to be clarified
in the statute with respect to the False Claims Act, and that
is that it seems that the funding through the false--funding
for services that are needed under the Justice for All Act in
order to fulfill its promise are not authorized under the False
Claims Act; and I would urge Congress to address that.
The last issue is the jurisdiction. Where should you take a
mandamus action out of the D.C. Superior Court? Those cases are
prosecuted by Federal prosecutors, and there's a question--and
it is ambiguous in the language of the statute--whether the
mandamus action should go to the D.C. Circuit, the Federal
Court of Appeals, or the DCCA, D.C. Court of Appeals, which has
jurisdiction over all other criminal appeals in the District of
Columbia, which seems like a logical place.
But in any event, it needs to be clarified.
Mr. Chabot. Thank you very much.
[The prepared statement of Ms. Leary follows:]
Prepared Statement of Mary Lou Leary
Good afternoon, Chairman Chabot, ranking member Nadler, and members
of the Subcommittee. My name is Mary Lou Leary, and I am the executive
director of the National Center for Victims of Crime. The National
Center is a nonprofit resource and advocacy organization that recently
celebrated our 20th year of championing the rights and interests of
victims of crime. Our members include victim service providers and
allied professionals who assist crime victims at the federal, state,
and local levels. I appreciate the opportunity to appear before you
this afternoon to address the implementation of some historic victims'
rights legislation, the Justice for All Act of 2004. We supported this
Act initially and have monitored its implementation.
VICTIMS' RIGHTS PROVISIONS
The Justice for All Act provided clear and enforceable legal rights
to all direct victims of crime at the federal level. While many of
these rights existed previously, they were codified primarily in Title
42 of the Federal Code: the Public Health and Welfare title. As a
consequence, judges and many others in the criminal justice system
remained unaware of their existence. The Justice for All Act moved the
list of crime victims' rights to Title 18, the Federal Criminal Code.
At the same time, it strengthened many of those rights. For
example, under the Act, the rights ``to be notified'' of court
proceedings and the release of the offender became the right ``to
reasonable, accurate, and timely notice'' of such events. The right to
restitution became the right to ``full and timely restitution.'' The
right to be heard, previously limited to certain victims at certain
proceedings, was expanded to ``the right to be reasonably heard at any
public proceeding in the district court involving release, plea,
sentencing, or any parole proceeding.''
This Act also addressed enforcement of federal victims' rights.
Crime victims, their attorneys, and prosecutors were given legal
standing to assert victims' rights, and procedures were set out for
seeking a writ of mandamus to enforce those rights. The act also
required the Attorney General to develop regulations to promote
victims' rights through training, disciplinary sanctions for violations
of rights, and the designation of an office to receive and investigate
crime victim complaints.
Moving the rights of crime victims to the U.S. Criminal Code and
adding remedies for their violation has had a significant impact on the
federal criminal justice system. Prior to the passage of the Act,
victims' rights were viewed as ancillary by many federal prosecutors
and administrators. One of our members told us the Justice for All Act
has ``ended some of the hesitancy [about victims' rights] that
attorneys may have had in the past,'' that attorneys were asking more
questions of the victim/witness staff and ensuring that crime victims
were provided their rights.
Another National Center member who is a victim advocate reported
that following implementation of the Act, ``[m]anagement has . . .
placed more emphasis on victims' rights at in-house meetings and in
memos'' and that ``[a]ttorneys seem to be taking a much more proactive
approach to the issue rather than waiting for me to come by and say
something to them.''
A third person said the Justice for All Act ``has provided many
opportunities to discuss the rights of victims in our office, and I
embrace each of those opportunities.''
Importantly, the Act also provided the funding that Congress
recognized would be crucial to the effective implementation of the
victims' rights provision. It authorized an additional $2 million the
first year and $5 million each of the following four years to augment
victim/witness programs in U.S. Attorneys' offices, and it authorized
identical amounts to enhance the federal Victim Notification System.
Congress specifically authorized this funding in addition to funding
already provided through the Victims of Crime Act Fund.
We have heard of several specific cases where the Justice for All
Act made a difference to a specific victim. In one case, where a court
failed to provide notice of the sentencing date to the attorney and
advocate in time for them to notify the victim, sentencing was
continued to allow the victim to be notified and attend. In another, a
victim had driven hundreds of miles to attend a sentencing, only to be
told that he could not address the court. In that case, the prosecutor
reminded the judge of the crime victims' rights act, and the victim was
then given an opportunity to be heard.
We have heard of courts factoring in the victim's right to a speedy
disposition of the case in setting a trial date; of prosecutors
asserting the victim's right to be heard at a detention hearing in
which the judge was likely to release the defendant; and of greater
efforts to identify victims and their losses earlier in the case.
One member told us that in her more than 30 years of experience in
law enforcement and victim services, ``the Justice for All Act is . . .
the best piece of legislation to help crime victims.'' Another told us
``this law was much needed and very late.''
CURRENT ISSUES:
While the Justice for All Act has truly benefited victims of
federal crime, there are three issues that demand Congress' attention
for the Act to fulfill its promise.
First, the demands on victim/witness staff and the federal victim
notification system have significantly increased, as was anticipated.
The Department of Justice estimates that in the year following passage
of the Act, the number of identified victims and resulting
notifications has doubled.
Unfortunately, it appears that the additional funding authorized to
meet this increased demand was never provided. From around the country,
our office has heard of victim assistants who are simply overwhelmed by
the notification requirements, particularly with regard to entering
information into the notification system. While the burden on offices
increased exponentially, the staffing has not increased.
The implications go beyond an unhappy workforce. Such conditions
also mean that victim/witness staff struggling to keep up with data
entry responsibilities have less time to provide other crucial victim
services, such as accompanying victims to court, conducting safety
planning, helping victims with their impact statements, and working
with victims seeking restitution to detail their losses. Talented and
dedicated victim assistance staff have essentially become data entry
clerks, depriving victims of much-needed service.
The solution is clear: Congress must appropriate the money
authorized in the Justice for All Act for victim/witness staff. This
money could support additional clerical staff to ease the data entry
burden on victim/witness coordinators and allow them to better meet
their other responsibilities to victims.
On a similar front, Congress should provide the additional funding
authorized for the Victim Notification System (VNS) to ensure that it
operates efficiently, is user-friendly, and can receive information
such as revised court dates directly from the federal court computer
system.
I do note that, unlike the new grant programs contained within the
Justice for All Act, the increases in authorization for the victim
assistance programs and VNS were not explicitly supportable by moneys
collected under the False Claims Act. This Committee may want to amend
the statute to clarify that False Claims Act funding is also available
to support these two items.
Secondly, the Justice for All Act did not include victims' rights
at the investigatory stage. However, these rights were established and
remain codified under Title 42, Section 10607 of the U.S. Code. That
section provides that ``[a]t the earliest opportunity after the
detection of a crime at which it may be done without interfering with
an investigation, a responsible official shall'' identify each victim
and provide certain rights and services, including notice of the status
of the investigation, the arrest of the accused, the filing of charges,
and the release of an offender. Victims' rights must certainly be
understood to include notifying a crime victim who has reported an
offense of a decision not to file charges in a case.
Because the listing of rights moved to the criminal code does not
include these rights at the investigatory stage, they have received
uneven attention and have often been neglected in the federal criminal
justice system. The National Center strongly urges Congress to clarify
that crime victims have the right to be informed of the status of an
investigation, the arrest of the accused, and the filing or decision
not to file charges. A commitment to victims' rights prior to the
filing of charges will also require an authorization of funding to
support the collection of crime victim information at this earlier
stage in the criminal justice process.
A third issue we've identified regarding implementation of the
Justice for All Act relates to crime victims in the District of
Columbia. The Act states that it applies to victims ``directly and
proximately harmed as a result of the commission of a Federal offense
or an offense in the District of Columbia.'' Thus, it logically applies
to Superior Court cases in the District that are handled by the U.S.
Attorney. However, the law is not explicit, nor is it explicit where a
victim in such as case would seek a writ of mandamus if his or her
rights were denied in the lower court: the D.C. Court of Appeals, the
typical appellate court for Superior Court cases, or the U.S. Court of
Appeals for the District of Columbia. This matter should be clarified
to provide that such a writ would be sought in the D.C. Court of
Appeals, which, under D.C. law, D.C. Code Sec. 11-721, has jurisdiction
over other appeals of Superior Court rulings in criminal matters
brought by the United States.
In summary, the Justice for All Act significantly advanced the
rights of crime victims at the federal level. However, the Act will not
achieve the full measure of justice it promised for victims until
Congress provides the funding required for implementation and reaffirms
our national commitment to crime victims starting at the investigatory
stage.
The National Center stands ready to assist you as you work toward
ensuring that justice truly is for ``all.'' Thank you for your
attention, and I welcome any questions you may have.
Mr. Chabot. Professor Goldscheid, you're recognized for 5
minutes.
TESTIMONY OF JULIE GOLDSCHEID, ASSOCIATE PROFESSOR, CUNY SCHOOL
OF LAW
Ms. Goldscheid. Thank you.
Good afternoon, Chairman Chabot, Ranking Member Nadler, and
other Members of the Subcommittee. Thank you for the
opportunity to testify here today.
For over 25 years, I have advocated on behalf of crime
victims both in and out of the judicial system. My work has
focused on a group of particularly vulnerable crime victims,
victims of domestic and sexual violence. From that experience,
I commend efforts to enhance victims' rights and to support the
services and assistance they need to recover from the crime.
The 2004 Crime Victims' Rights Act helps ensure victims
appropriate protection, notice and participation in Federal
criminal proceedings. However, the act does not address the
greatest needs of the vast majority of victims of crime, the
needs for services such as compensation, counseling, shelter
and assistance in the wide range of legal issues that they may
confront, which bring victims to civil as well as criminal
proceedings. And the act also doesn't address enforcement of
existing laws and full appropriation of already-authorized
expenditures.
As this Subcommittee considers how effectively crime
victims' rights are being addressed, it should consider the
full range of victims' needs. I will highlight three concerns
for the law's implementation, and I direct you to my written
testimony for more detail.
First, some of the provisions of the Crime Victims' Rights
Act fall short of meeting victims' needs, particularly for
those victims with fewer financial resources. For example, the
act authorizes victims' participation in criminal proceedings,
but it does not make any provision to ensure that victims will
be granted time off from work without adverse consequences in
order to be able to appear. Absent assurances that victims can
attend criminal proceedings without putting their jobs or their
incomes on the line, the right guaranteed in the 2004 act may
not prove useful to many victims.
Second, all authorizations that fund programs for crime
victims must be fully appropriated. As you've already heard,
the victim notification system improvements that were
authorized by the Crime Victims' Rights Act must be fully
funded in order to allow victim/witness coordinators to do
their jobs and assist victims. And in order to ensure that by
enforcing the rights created by this new law, the crime victim
compensation and assistance programs that are now funded
through VOCA are not shortchanged. It would be ironic, and
certainly ill advised, if funding limitations led resources to
be taken away from one crime victims' program to fund another.
Similarly, crime victims are at risk of losing critical
services and protections if the 2005 VAWA reauthorization
provisions are not fully appropriated.
President Bush's proposed fiscal year 2007 budget does not
include any funding for these important programs that Congress
has authorized. These include direct services for victims of
sexual assault, programs for young victims of violence, and
services for children exposed to violence.
The proposed budget fails to fund and underfunds other
important programs, such as judicial training, and critical
legal services that I alluded to before, such as for
representation in orders of protection in custody cases, in
immigration proceedings, in U-visa and T-visa proceedings. And
the funding for much of that type of representation is included
in the 2005 VAWA reauthorization, and it should be fully
appropriated in order to fully meet crime victims' needs.
In addition, the VOCA fund, which, as you know, is
comprised of defendants' fines and fees from Federal
prosecution, is used to support critical victim assistance and
compensation programs nationwide.
As you know, since 2000 Congress has limited how much of
the fund can be distributed to the States in a given year in
order to ensure that there is a balance left in the fund for
years when there are fewer collections. Last year, the
President unsuccessfully recommended depleting that reserve and
using the money for other budgetary items. As I said, he was
not successful, but he has made the same proposal this year.
These moneys should be left in the VOCA fund to be used for the
crime victim assistance and compensation programs for which
they were intended.
Finally, many victims, particularly victims of domestic
violence, affirmatively do not want to participate in criminal
proceedings; instead, they want help to be able to live safely
and economically, independently from their abuser. Many
interventions other than those in the 2004 Crime Victims'
Rights Act are critical to these crime victims' ability to meet
these goals. These include the legal assistance I referred to,
shelter programs, support services, ensuring that the social
services programs have adequate language proficiency, and other
programs, as I said before, many of which are included in the
2005 VAWA reauthorization, but which await appropriation.
Overall, support for this wide range of programs is
essential to any comprehensive and effective approach to crime
victims' needs. Congress should ensure full funding and
vigorous enforcement of all programs within its jurisdiction
that provide crime victims compensation, services and
assistance.
Thank you.
Mr. Chabot. Thank you, Professor.
[The prepared statement of Ms. Goldscheid follows:]
Prepared Statement of Julie Goldscheid
Good afternoon, Mr. Chairman, Ranking Member Nadler, and other
members of the Committee. Thank you for providing me the opportunity to
testify today. My name is Julie Goldscheid. I am an Associate Professor
at CUNY Law School, the only public law school in New York City and one
of the most diverse law schools in the country. CUNY Law School was
founded in 1985 with the mission of training public interest lawyers,
and graduates twice as many public interest lawyers as any law school
in the country. The views expressed here are my own, and not the views
of the law school. They are grounded in my experiences working on
behalf of the rights of victims of crime, primarily victims of domestic
and sexual violence. Before joining the CUNY Law School faculty, I
served as General Counsel of Safe Horizon, the nation's leading victim
assistance and advocacy organization, and as a senior staff attorney at
Legal Momentum, formerly NOW Legal Defense and Education Fund, where I
headed the organization's litigation, legislative and advocacy efforts
to end violence against women. I have represented victims of domestic
or sexual violence in civil proceedings, including cases brought under
the civil rights remedy of the 1994 Violence Against Women Act, which I
argued before the U.S. Supreme Court in United States v. Morrison, 529
U.S. 598 (2000).
My testimony today concerns Title I of the Justice for All Act of
2004,\1\ which addresses Crime Victims' Rights (``2004 Crime Victims'
Rights Act'' or the ``Act'').\2\ I commend Congress, and this
Committee, for your attention to crime victims' needs and your efforts
to ensure that crime victims' concerns are appropriately taken into
account as part of criminal justice proceedings. The 2004 Crime
Victims' Rights Act makes useful steps towards ensuring victims
appropriate protection, notice, and participation in the criminal
proceedings of their accused. It supplements previously existing laws.
However, the Act does not address, nor was it designed to address, the
greatest needs of the vast majority of victims of crime--the need for
services such as counseling, shelter, and assistance in addressing the
range of legal issues they may confront, and for enforcement of
existing laws and full appropriation of already-authorized
expenditures.
---------------------------------------------------------------------------
\1\ Pub. L. 108-405, 118 Stat. 2260 (Oct. 30, 2004).
\2\ Title I of the Justice for All Act is the Scott Campbell,
Stephanie Roper, Wendy Preston, Louarna Gillis and Nila Lynn Crime
Victims' Rights Act, codified at 18 U.S.C. Sec. 3771 (2006).
---------------------------------------------------------------------------
2004 Crime Victims' Rights Act
The 2004 Crime Victims' Rights Act grants victims of federal crimes
a spectrum of rights and clarifies that those rights are enforceable in
federal court. The rights include the right to be reasonably protected
from the accused; to reasonable, accurate and timely notice of
proceedings related to the crime, including public court proceedings,
parole, release, plea or sentencing; the right not to be excluded from
such proceedings unless the court determines that the victim's
testimony would be materially altered as a result; the right to confer
with the Government's attorney; the right to full and timely
restitution; the right to proceedings free from unreasonable delay; and
the right to be ``treated with fairness'' and ``with respect for the
victim's dignity and privacy.'' \3\ The Act funds legal services to
assist victims in enforcing those enumerated rights.\4\ The Act also
strengthens notification systems to improve the likelihood that victims
will be alerted, for example, of upcoming criminal proceedings or of a
defendant's imminent release from custody.\5\
---------------------------------------------------------------------------
\3\ Pub. L. 108-405, 118 Stat. 2260, at Sec. 102(a), codified at 18
U.S.C. Sec. 3771(a)(1)-(4) (2006). These rights are made enforceable
through 18 U.S.C. Sec. 3771(d) (2006).
\4\ Pub. L. 108-405, 118 Stat. 2260, at <l-arrow>103(a), codified
at 42 U.S.C. Sec. 10603d (2006).
\5\ Pub. L. 108-405, 118 Stat. 2260, at <l-arrow>103(c), codified
at 42 U.S.C. Sec. 10603e (2006).
---------------------------------------------------------------------------
These provisions are important and may help victims in their
recovery from the economic and psychological harms that crime often
produces. For example, in one case the 2004 Victims Rights Act enabled
victims who were potential witnesses to be present at trial in a case
involving the murder of the victims' family members.\6\ In another, the
new law enabled the court, sua sponte, to give victims of an alleged
mail fraud scheme notice of hearings that had taken place without their
knowledge.\7\ In yet another, the estate of a three-year-old-girl
killed by a man who was found guilty of and subsequently pled guilty to
voluntary manslaughter was awarded over $300,000 in restitution for the
infant's prospective lost wages.\8\ The improved notification systems
authorized by the Act can go a long way towards allaying victims'
concerns that they will not be prepared for a perpetrator's release
from custody, and may enable them to make arrangements to participate
in proceedings if that is their desire.
---------------------------------------------------------------------------
\6\ United States v. Johnson, 362 F. Supp. 2d 1043 (N.D. Iowa
2005).
\7\ United States v. Turner, 367 F. Supp. 2d 319 (E.D.N.Y. 2005).
\8\ United States v. Serawop, 409 F. Supp. 2d 1356 (D. Utah 2006).
---------------------------------------------------------------------------
Some of the provisions, however, fall short of meeting many
victims' needs, particularly those who have fewer financial resources.
For example, the Act authorizes victims' participation in criminal
proceedings, but does not make any provisions to ensure that they are
granted time off from work without adverse consequences. Currently,
many states have provisions that encourage employers to facilitate
employees' participation in criminal proceedings in which the employee
has been a victim.\9\ However, in most of these states, employers are
only encouraged, not required, to grant this type of employment
leave.\10\ Even where leave is granted, in most states it is unpaid,
and in many states it is limited to a particular number of days, or for
attendance at particular types of proceedings.\11\ Absent assurances
that victims can attend criminal proceedings without facing adverse
consequences at their jobs, the right granted in the 2004 Act may not
prove useful to the many victims who cannot afford to put their jobs,
or their incomes, in jeopardy.
---------------------------------------------------------------------------
\9\ See generally, Legal Momentum, State Law Guide, Time Off from
Work for Victims of Domestic or Sexual Violence, available at http://
www.legalmomentum.org/issues/vio/timeoff.pdf.
\10\ Id.
\11\ Id.
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Other victims may not be able to avail themselves of the Act's
provisions because they lack the resources to travel to a court
proceeding. Victims who reside in other states, or other countries, now
have a right to participate in hearings or other proceedings, but the
Act provides no funding to support their travel if they lack adequate
resources to pay for the trip on their own.
Appropriations and enforcement of other federal laws
Perhaps more important to those concerned with victims' rights is
the Act's limited scope. Since most crimes are prosecuted in state, not
federal court,\12\ only a limited number of victims can avail
themselves of the Act. For the vast majority of crime victims, other
provisions of federal law, such as those contained in the Violence
Against Women Act, and the Victims of Crime Act, hold greater potential
to help them recover from the crime and live safely. Those laws should
be fully funded and efforts should be made to ensure their full
enforcement.
---------------------------------------------------------------------------
\12\ See, e.g., United States v. Morrison, 529 U.S. 598, 618 (2000)
(``The regulation and punishment of intrastate violence that is not
directed at the instrumentalities, channels, or goods involved in
interstate commerce has always been the province of the States . . .
Indeed, we can think of no better example of the police power, . . .
than the suppression of violent crime and the vindication of its
victims.'').
---------------------------------------------------------------------------
VAWA 2005 should be fully funded
Many victims of crime are victims of domestic or sexual violence.
In January 2006, Congress enacted the Violence Against Women and
Department of Justice Reauthorization Act of 2005 (``2005 VAWA
Reauthorization'' or 2005 Reauthorization'').\13\ This reauthorization
of the law originally enacted in 1994 renewed many critical programs,
such as services for domestic violence victims and programs to improve
law enforcement responses, as well as funding for legal services to
enable domestic violence victims to obtain protection from an abuser.
In addition, it authorized many important new initiatives. For example,
among the Act's many provisions, the 2005 Reauthorization for the first
time funds direct services programs for victims of sexual assault.\14\
It also authorizes programs that would assist young victims of
violence,\15\ prevention and awareness campaigns directed at the
general public,\16\ and initiatives to train health professionals, who
frequently are in the position of being the first professionals to
learn of abuse.\17\ The bill protects domestic violence victims from
being evicted from public housing and from losing housing subsidies as
a result of the criminal acts of their abusers.\18\ It aspires to
advance victims' economic security by establishing a national resource
center on workplace responses to domestic and sexual violence.\19\
Importantly, it improves legal protections for victims of
trafficking,\20\ and directs resources to domestic violence within the
Native American community.\21\ Other provisions target services to
historically underserved communities and aim to enhance culturally and
linguistically specific services for victims.\22\
---------------------------------------------------------------------------
\13\ Pub. L. 109-162, 119 Stat. 2960 (Jan. 5, 2006).
\14\ See 2005 VAWA Reauthorization, tit. II, Pub. L. 109-162, 119
Stat. 2960, Sec. Sec. 201-206.
\15\ See 2005 VAWA Reauthorization, tit. III, Pub. L. 109-162, 119
Stat. 2960, Sec. Sec. 301-306.
\16\ See 2005 VAWA Reauthorization, tit. IV, Pub. L. 109-162, 119
Stat. 2960, Sec. Sec. 401-402.
\17\ See 2005 VAWA Reauthorization, tit. V, Pub. L. 109-162, 119
Stat. 2960, Sec. Sec. 501-505.
\18\ See 2005 VAWA Reauthorization, tit. VI, Pub. L. 109-162, 119
Stat. 2960, Sec. Sec. 601-602.
\19\ See 2005 VAWA Reauthorization, tit. VII, Pub. L. 109-162, 119
Stat. 2960, Sec. 701.
\20\ See 2005 VAWA Reauthorization, tit. VIII, Pub. L. 109-162, 119
Stat. 2960, Sec. Sec. 801-834.
\21\ See 2005 VAWA Reauthorization, tit. VII, Pub. L. 109-162, 119
Stat. 2960, Sec. Sec. 901-909.
\22\ See 2005 VAWA Reauthorization, tit. VII, Pub. L. 109-162, 119
Stat. 2960, Sec. Sec. 120, 121.
---------------------------------------------------------------------------
Currently, however, many of these important programs are at risk
because funding for them may not be appropriated. As it stands,
President Bush's proposed budget for fiscal year 2007 does not include
any funding for the important new programs Congress authorized. Even as
authorized, the funding levels for many programs fell short of what
advocates had determined was needed. Absent full funding, the promise
represented by the 2005 VAWA Reauthorization will ring hollow for the
countless victims of domestic and sexual violence who otherwise might
have been reached.
The VOCA reserve fund should be preserved
Another federal law that is critical to victims of crime is the
Victims of Crime Act (VOCA).\23\ VOCA established a Fund comprised of
defendant fines and fees in federal prosecutions, which is used to
support victim assistance and compensation programs nationwide. Since
2000, Congress has limited how much of the Fund can be distributed to
the states each year in order to leave a balance in the Fund for years
when fewer fines and fees were collected.\24\ Last year, the President
unsuccessfully recommended depleting that reserve and using it for
other budgetary items. He has made the same proposal this year. If
enacted, the President's budget would take the over $1 billion in fines
and fees collected for the purpose of funding victim assistance and
compensation programs away from those needed programs. This would mean
that in 2008 there would be no VOCA funding left in the reserve for
years in which fines and fees collected were inadequate to fund
programmatic needs.
---------------------------------------------------------------------------
\23\ 42 U.S.C. Sec. 10601 et seq. (2000).
\24\ In 2006, Congress limited the amount that could be disbursed
to $625 million. Congress has established these caps despite
Administration projections that because of lower deposits, amounts kept
in reserve in the fund would be needed to meet VOCA commitments during
fiscal years 2006 and 2007. See National Association of VOCA Assistance
Administrators, Victim of Crime Act's (VOCA) Crime Victims Fund,
available at http://www.navaa.org/07/docs/VOCA%202007.pdf.
---------------------------------------------------------------------------
Funding from the VOCA account supports many of the personnel
charged with implementing the 2004 Crime Victims' Rights Act, including
U.S. Attorney victim/ witness coordinators, who, among other things,
implement the federal victim notification system. VOCA funds also
support the crime victim compensation programs that reimburse crime
victims for their financial losses resulting from crime, and the
assistance programs that offer counseling and support, and help for
victims navigating the criminal justice and other benefits programs to
help them recover from the crime. These programs are vital to crime
victims. Many advocates support removing the caps on VOCA funds
entirely, to enable the states to manage the fluctuations in resources
as they see fit. However, even if Congress insists on maintaining the
caps on disbursements, it should ensure that all the amounts collected
to assist crime victims actually goes to the services for which they
have been collected.
Victim services programs require comprehensive, coordinated funding
and full enforcement
As this Committee, and Congress as a whole, considers a federal
statute that aims to assist victims of crime, it should consider the
full range of victims' needs and should ensure that all aspects of
services are adequately funded. For example, the 2004 Act dramatically
increases notification obligations, but does not ensure the allocation
of personnel resources to meet those requirements. Current funding for
such functions draw on VOCA funds; however, if overall disbursements
are limited, increasing funding for compliance with the 2004 Act could
jeopardize funding for the ongoing and critical state programs for
which there is no other source of support. Congress should ensure that
the ongoing state programs, which provide direct and critical services
to victims, are not jeopardized by new obligations under federal law.
Beyond participation in criminal proceedings, victims often need
counseling and concrete services to help them move on with their lives.
Many victims, particularly victims of domestic violence, affirmatively
do not want to participate in criminal proceedings and instead want
assistance in living safely and in becoming economically independent
from their abuser. Victims of crime often benefit from emotional
support programs and assistance in recovering from the economic losses
that may result from the crime. For example, one study found that in
1992 alone, crime victims lost $17.6 million in direct costs as a
result of the crime.\25\ The 2004 Crime Victims Rights' Act does
nothing to support counseling programs or interventions that help
victims obtain crime victim compensation or other benefits for which
they might be eligible. Victims also require legal assistance that goes
beyond enforcing the rights enumerated in the 2004 Act. For domestic
violence victims in particular, representation in order of protection,
custody and visitation, housing and employment, and benefits
proceedings is critically important and can reduce the risk of future
abuse.\26\ Legal assistance in immigration proceedings and in
proceedings to enforce rights established under the U-visa and related
programs also fall far short of victims' needs. Services such as
shelter programs and financial support are also high priority.\27\
Funding to ensure language proficiency in the services that are offered
to victims also is critical to ensuring programmatic success. Overall,
support for this wide range of programs is essential to any
comprehensive approach to crime victims' needs.
---------------------------------------------------------------------------
\25\ Patsy A. Klaus, Bureau of Justice Statistics, The Costs of
Crime to Victims, NCJ-145865 (Feb. 1995), available at http://
www.ojp.usdoj.gov/bjs/pub/ascii/coctv.txt.
\26\ See, e.g., Amy Farmer and Jill Tiefenthaler, Explaining the
Recent Decline in Domestic Violence, 21 Contemp. Econ. Pol'y No. 2,
158-172 (2003) (analyzing government data on the incidence of domestic
violence and concluding that the provision of legal services to
battered women significantly lowers the incidence of domestic
violence). 2005 VAWA authorizes funding for this broader range of legal
services. See 2005 VAWA Reauthorization, tit. I, Pub. L. 109-162, 119
Stat. 2960, Sec. Sec. 103, 104.
\27\ See, e.g., Laura Nichols and Kathryn M. Feltey, The Woman Is
Not Always the Bad Guy, 9 VAW 784 (July 2003) (survey of women living
in a battered women's shelter highlight importance of shelter and
assistance with financial support).
---------------------------------------------------------------------------
Conclusion
The 2004 Crime Victims Rights Act addresses some of victims' needs
in certain circumstances. To most fully address the myriad of
challenges crime victims face, Congress should ensure full funding and
vigorous enforcement of all federal programs that provide them
compensation, services and assistance.
Mr. Chabot. Ms. Garvin, you're recognized for 5 minutes.
TESTIMONY OF MARGARET A. GARVIN, ESQ., DIRECTOR OF PROGRAMS,
NATIONAL CRIME VICTIM LAW INSTITUTE
Ms. Garvin. Thank you. Thank you, Mr. Chairman and
distinguished Members. Thank you for holding this hearing today
and for inviting me to present the views of the National Crime
Victim Law Institute on the current status of the
implementation of the CVRA.
NCVLI is a national resource for the advocacy of crime
victims' rights, and provides support to legal clinics across
the country, established by Congress and by the Office of
Victims of Crime.
I joined NCVLI in February of 2003, and as Director of
Programs there, I provide the programmatic oversight to each of
the victims' rights programs, including the pro bono clinical
program that NCVLI operates.
Prior to joining NCVLI, I clerked for the Honorable Donald
P. Lay of the Eighth Circuit Court of Appeals and practiced law
in Minnesota.
When President Bush signed the Crime Victims Act into law
in October of 2004, a new era in Federal crime victims' rights
law was ushered in. The CVRA moved what were largely symbolic,
unenforceable aspirations for better treatment of crime
victims--that were buried within title 42, as has already been
commented on--into the light of title 18 and converted them
into enforceable rights.
The CVRA was born of the failure of Congress to pass and
refer to the States the proposed Crime Victims' Rights
Amendment to the United States Constitution. Critics of that
proposed amendment often said they were for crime victims'
rights, but that they did not need to be in the U.S.
Constitution, that a statute would suffice, that a statute, if
it was enforceable, could secure for victims the justice and
due process that they sought. The CVRA, then, was intended in
part to test that claim.
In addition to creating the new enforceable rights,
Congress authorized appropriation to ensure victims' access to
enforcement mechanisms. Approximately 20 months have passed
since the new law came into effect. The Department of Justice
has issued revised AG guidelines which conform to the
requirements of the law, the Attorney General has appointed an
ombudsman to review and consider compliance issues within the
Department of Justice. Law review articles have been written,
and Federal courts have issued 25 opinions that are readily
accessible. So now is an appropriate time to stop and consider
what the initial impact of the CVRA is.
I will address two points: first, the case law to date; and
secondly, the clear and present need for Congress to
appropriate the funds up to its authorization level.
First, the cases: NCVLI's review of the Federal cases
available through electronic research that discuss or mention
the CVRA reveals that there are only 25 cases that have issued
out of trial and appellate courts across the country. The
citation to each of those cases is provided in my written
testimony. Of these 25 cases, only three have issued from
Federal appellate courts across the country. And it is in the
appellate courts that the true contours of the CVRA will be
determined.
I'm going to discuss three of the cases, two out of circuit
courts and one out of a district court. The first two cases are
particularly revealing of the courts' continuing treatment of
crime victims and their rights as lesser rights.
First, a trial court decision that is perhaps the most
dismissive of victims right and disrespectful of the CVRA,
United States v. Holland. In Holland, an offender filed a
petition objecting to the restitution portion of his sentence.
The court held that 9 years after sentencing it retained
jurisdiction to alter the restitution obligation pursuant to a
different act, the Victim Witness Protection Act. But in
conclusion, the court made a statement regarding the CVRA. The
court stated, quote, ``If the victim believes that the new
mushy, `feel good' statute with the grand title `Crime Victims'
Rights' abrogates''--and now I am no longer quoting--a
different court case which held that restitution is penal, then
the victim may, of course, mount an appeal.
The callous language of this court acts as a reminder of
why crime victims' rights need to be clear and backed by the
ability of the victim to seek enforcement.
A second opinion demonstrates more substantive threat to
the CVRA, and that is In Re Huff Asset Mgmt. Co. In R.W. Huff,
the Second Circuit Court of Appeals noted in dicta that ``most
of the rights provided under the CVRA require an assessment of
`reasonableness.' '' From this, the court concluded that the
proper standard of review was abuse of discretion.
While the court was correct that five of eight of the
rights include some form of the word reasonable, the leap to
its conclusion is quite disturbing. If the rights provided in
the CVRA are subject to an abuse of discretion standard, the
rights in this country will continue to be subject to the whims
and capricious interpretation of each trial court judge,
including the one I quoted previously. The result is that
victims' rights will once again be rendered illusory instead of
enforceable.
There is one Ninth Circuit case that has recognized and
given meaning to Congress' intent that crime victims be
participants. In Kenna v. District Court, which has already
been mentioned during this hearing, Patrick Kenna was denied
the ability to exercise his right to be heard at the second
sentencing proceeding. When Mr. Kenna, unrepresented by
counsel, tried to speak, the district court denied him that
opportunity stating, quote, ``I don't think there's anything
that any victim could say that would have any impact
whatsoever.'' After retaining counsel, Mr. Kenna filed a writ
of mandamus up to the Ninth Circuit, and that court reversed.
When one considers these cases and the other cases issued
to date, it's clear that the courts are affording the rights
provided by the CVRA a lesser status and a lesser respect. The
net result is that courts are continuing to view crime victims
as an interlopers around the criminal justice system.
My second point, which will be brief, is that if the rights
provided in the CVRA are to be truly and fairly tested in our
court system and the claim of critics of the proposed amendment
tested, they must be fully--this Congress must fully fund the
authorizations.
The CVRA authorized funding for a number of enforcement and
implementation programs; among those programs was 7 million,
fiscal year 2005, and 11 million for fiscal years 2006 through
2009 to the Office for Victims of Crime to support programs
providing legal counsel to victims. So far, just short of 2
million out of the initial 7 million has been appropriated. The
importance of this disparity should not be overlooked.
I'm going to briefly revisit the Kenna case as an example.
When Mr. Kenna sat in the gallery of the sentencing of his
offender, he was not represented. Unrepresented, he stood and
tried to assert his right to speak, his clear right to speak
that's stated in CVRA. He was, in essence, told to sit down by
the district court. Following sentencing, Mr. Kenna secured pro
bono counsel. That counsel was able to navigate a procedural
maze of our court system, file a mandamus within the 10-day
time period required.
Despite a requirement in the CVRA that the Ninth Circuit
act within 72 hours, nothing happened. Instead, Mr. Kenna's
counsel had to file a subsequent pleading with the court urging
action. Eight months later, the Ninth Circuit finally heard the
case and heard oral argument.
It was this legal work that led to the one and only
appellate court decision that has interpreted the CVRA
positively. The case stands as a clear example of the
importance of victims having counsel in the criminal justice
system.
NCVLI urges Congress to appropriate the remaining amount
available so that more victims like Mr. Kenna can have their
day in court, and so that the theory of a strong statute with
enforceable rights can be adequately tested. Thank you.
[The prepared statement of Ms. Garvin follows:]
Prepared Statement of Margaret A. Garvin
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Chabot. Thank you very much, Ms. Garvin.
And before I get into questioning, I think some of the
things that you raised are principal reasons why many of us
felt that a Victims' Rights Constitutional Amendment was
ultimately the answer.
We want this to work, we want this to do what it can for
victims. But when you have the criminals' rights that are
protected in the Constitution itself--you know, the right not
to testify against themselves, to have an attorney, the whole
range of things, to have witnesses compelled to come; they're
all in the Constitution--if you have the victims over here that
are protected by statute, not the Constitution, if the two ever
come in conflict with each other, the Constitution is going to
trump that statute every time. And that's why I continue to
believe that a constitutional amendment should be the case.
But we're not there yet because it takes two-thirds in the
House, two-thirds in the Senate and three-fourths of the State
legislatures, which unfortunately we just don't have.
Ms. Culberson, if I could begin with you, what obstacles
face victims like yourself who are trying to locate the remains
of family members?
Ms. Culberson. I believe education is a lot of that. In a
rural area such as ours, there is little homicide.
And definitely the fact that, again, there is no mandatory
testing; and remains are found and they're just put away. And
it's just, to me, impossible to believe that we don't--I'm
going to phrase it, it is not real popular, but you would think
it would be a no-brainer that you would take these remains and
test them.
And just the fact that when something like this happens to
a person such as myself, we don't know where we need to go to
get the information that will help, so we depend on many others
to know what we need to do.
Mr. Chabot. And you have also advocated for a Federal law
that would set minimum standards for DNA testing for
unidentified human remains.
Why do you believe that a Federal law is more advantageous
than simply leaving it up to the States to decide?
Ms. Culberson. I think having a national protocol and
having all 50 States on the same page at the same time is
important because of the possibility of interstate transport of
the remains. And I just think we all need to be on the same
page at the same time.
Mr. Chabot. And finally, as you know, the Department of
Justice has provided funding for the creation of kits to
collect DNA from family members of missing persons through the
grants in the Justice for All Act. Would you tell us why the
creation of such kits would be important for ultimately helping
to locate family members that are missing?
Ms. Culberson. We need to have family reference samples put
into a database in order to match the remains to a family
member. So this is something that is necessary, and it's
something that has been moved upon.
Mr. Chabot. Okay, thank you.
Was there anything else--I did not mean to cut you off in
your original testimony, but in trying to keep it as fair as we
can, was there anything that you wanted to say that you didn't
have an opportunity to say in your----
Ms. Culberson. No, sir. And I apologize, I was looking at
the time and numbers rather than the lights. I apologize.
Mr. Chabot. No problem at all. No need for an apology.
And, Ms. Leary, I'll go to you next if I could. Do you
think that the courts and the Justice Department are adequately
aware of the new law? And what sort of educational efforts do
you think they should be undertaking for judges and prosecutors
to make sure that they're aware of the rights of victims?
Ms. Leary. Well, I think with respect to prosecutors,
they're subject to mandatory training all the time--and Federal
prosecutors' offices across the country. And I think that the
Executive Office of U.S. Attorneys has designed a training
program, and it needs sufficient resources and, quote,
``manpower,'' to make sure that the training is presented to
AUSAs across the country, and that they're all getting the same
message about what the act means.
I am concerned that if part of that training includes an
interpretation that the act does not apply in the investigative
stage, I would be concerned about that as a content of the
particular training because I've already expressed my views on
that.
With respect to judges, I would like to see training
through the National College for Judges, I think that's a good
way to reach them. And you could--for instance, it isn't just
the new judges, and they have special training programs for
people who are brand new to the bench; but obviously folks who
have been on the bench for many, many years and--in fact, maybe
they're the ones who need the education most of all, since
they've been doing business a certain way for so long.
So I would like to see the National Judicial College get
involved in that training as well. And I think the training
should include victims and victim advocates, just to bring home
the human aspect of the importance of this act.
Mr. Chabot. Thank you.
Professor I'm running out of time. There was one question I
wanted to get to Ms. Garvin, and so I apologize for not getting
you at this point.
Ms. Garvin, in your testimony before you spoke of some
judges giving short shrift to the Crime Victims' Rights Act,
and you even mentioned one judge who had called it ``new,
mushy, feel good''--``a new mushy, `feel good' statute with a
grand title.''
In your view, having already provided victims with mandamus
provisions, what can Congress do or what should Congress do at
this juncture to ensure that the purposes of the act are met?
Ms. Garvin. Two things: The first would be appropriating
fully, so that victims have attorneys. It is when--part of the
case in controversy--the requirement of the Constitution is
there because the adversity that is brought in a case is there
in part because you have parties who are advocating opposite
sides. When a victim has their own attorney in a courtroom,
they can adequately present an issue to the court, which is a
method of education as well as enforcement.
The second thing, I would say, is to echo what has
previously been said, which is education of the judiciary does
need to occur also.
Mr. Chabot. Thank you very much. My time has expired.
The gentleman from New York, Mr. Nadler, is recognized for
5 minutes.
Mr. Nadler. Thank you.
Professor, following up on what was just said, can you
elaborate why victims' rights in the Justice for All Act are
not appropriate for some victims?
Ms. Goldscheid. Thank you for that question.
Many victims do want to participate in criminal
proceedings, and this law goes a long way toward effecting
those rights, but many victims in my experience, particularly
victims of domestic violence, wish to move on from the crime
and the violence that have occurred. And in order to do that,
they need help that often brings them to the civil justice
system, rather than the criminal justice system.
So while they may need in some cases to be witnesses in
criminal proceedings in order to vindicate their rights and
their interests if there is a prosecution going on, in many
cases, victims need to turn to get, for example, orders of
protection; or for domestic violence victims, for example, they
frequently have custody cases or there are family law matters
for which legal representation is crucial.
The Crime Victims' Rights Act does not address those legal
needs at all, and yet for--as I'm sure many of you know, for a
vast majority of victims, that is the type of legal
representation that can make all the difference in their
ability to move on from the crime and move to safety and move
to economic independence.
Mr. Nadler. You also said something about some crime
victims not wanting to go to court. Could you explain that a
little?
Ms. Goldscheid. Sure, thank you.
For domestic violence victims in particular, in many cases,
the last thing that they want to do is to have further contact
with an abuser. In many domestic violence cases, cases finally
come to court after what can be a very long period of a cycle
of abuse. And when a victim is finally at the point of perhaps
prosecuting or perhaps leaving, in many cases what she--and
I'll say she only because many of the cases, most domestic
violence is committed against women; certainly not all, but
I'll use ``she'' for convenience purposes--what she wants to do
is get away from the abuser.
Batterers are notorious for using the criminal justice
system as a way for perpetuating the abuse; it's a way of
making unfounded accusations against a battered partner. And so
the criminal justice system can become a place for
revictimization, which is why many victims, once they've made
the decision to leave, what their goal is is to get away from
the abuse, which may mean wanting to just move on and not focus
on a criminal prosecution.
Mr. Nadler. The acts that we've passed, the Justice for All
Act, the Victims' Rights Act, do they address that at all?
Should we be doing something else in this respect?
Ms. Goldscheid. I think the most important thing at this
point that Congress can do is to fully appropriate the laws
that I mentioned in my testimony. And I'm not saying that as a
way to be evasive----
Mr. Nadler. It's a question of funding, not further
statutes?
Ms. Goldscheid. There are certainly provisions of the
programs that could be funded, other provisions that many
advocated in support of and were not included in other legal
provisions, and I would look mostly to laws such as the
Violence Against Women Act reauthorization and, to a certain
extent, VOCA in the way I referred to earlier.
From my experience with victims, their concerns focus
mostly on the types of programs and services and legal
protections that are addressed under other laws, not so much
under the Crime Victims' Rights Act.
Mr. Nadler. Let me ask you one specific question I've
wondered about for many years, and I'm not sure if it's exactly
relevant to this, but we often talk about funding shelters for
victims of domestic violence, because obviously the victim
can't go back to live with the batterer. But why are we talking
about that? Why aren't we talking about taking the house away
from the batterer and letting him find shelter?
Ms. Goldscheid. It's an excellent question, and I know many
people do talk about. And if you're interested in additional
information, I believe that there are service providers who are
looking at exactly that type of model. And there are some
intervention----
Mr. Nadler. But there are no laws for that as far as I
know.
Ms. Goldscheid. There are no laws for that.
What does often happen is, women will get what are called
``stay-away orders,'' where the batterer is ordered to stay
away from the house and the victim--again, often a woman--is
allowed to stay in the house. But I can't think of any law that
mandates that the batterer lose his home.
But that's a good example of the type of civil legal
proceedings that are often critical to victims' needs.
Imagine a battered woman who has children, who wants to
remain in her home. In order to keep her custody and to retain
her ability to stay in her home with her children, she needs to
go to court, and that brings her either to family court, or
certainly to civil court.
Mr. Nadler. Let me ask one further question.
Mr. Chabot. The gentleman's time has expired but the
gentleman is granted one additional minute.
Mr. Nadler. The President, whoever wants to answer this,
the President has again proposed to rescind the crime victim
fund's rainy day fund. What would be the impact of doing this,
good, bad, indifferent? Anybody. Who wants to answer?
Ms. Goldscheid. I will start briefly. As I addressed in my
testimony, and I will let others chime in, that would really be
very detrimental to crime victims. Many people who work with
the crime victims programs that are funded through VOCA have
advocated for lifting the cap on those funds that establishes
that rainy day fund; in other words, so that what would happen,
instead of creating a fund, all the funds would be distributed
to the States and the States would have the responsibility of
managing the fluctuations that would result from different
levels of prosecutions and fine collections.
Taking those moneys away from these programs would be just
devastating to the many programs that really rely on it and
need it very desperately for victims' needs.
Mr. Nadler. Ms. Leary, you wanted to comment?
Ms. Leary. I would also add if you distribute all the funds
and take away everything above the cap, you are starting at
ground zero for the next funding cycle. That would be
devastating.
Mr. Nadler. So you are agreeing it would be devastating to
rescind the crime victims' rainy day fund.
Ms. Leary. In addition, at a meeting we had, several
victims organizations met with the Attorney General this
morning about a variety of issues and there was some very
poignant messages about victims who currently are not getting
adequate services because there isn't enough funding as it is,
particularly examples of children. Child victims of sex abuse
who are on a list and 6 months from now maybe you will get some
counseling and family help, that is unacceptable.
Mr. Nadler. That is what the rainy day fund implicates?
Ms. Leary. It would because it funds all the services. You
take that away, I mean we don't have enough money as it is,
take that away and it is going to have a serious impact.
Mr. Chabot. The gentleman's time has once again expired.
The Chair would note that it is quite common for this President
and other Presidents to not have in their budget funding for
various very worthy programs, which then Congress in its wisdom
during the course of the year in the appropriations process,
which we are in right now, puts the money back in and
ultimately when we pass it these programs are funded.
Mr. Nadler. Mr. Chairman, I am hoping that this question
and this answer my help to inform the Congress' wisdom in this
respect.
Mr. Chabot. The gentleman has accomplished that. We
appreciate the gentleman for bringing it up. We are going to
fund this. I can't imagine that we wouldn't. It is a worthy
thing, something that's important.
The gentleman from Arizona, Mr. Franks, is recognized for 5
minutes.
Mr. Franks. Thank you, Mr. Chairman, and thank you ladies
for coming before the Committee.
Ms. Culberson, I, like so many of us here on the panel,
have no thought or idea of the hurt and the heartache that you
have gone through in this situation and I just want to extend
to you the appreciation of all of us for your courage to in the
midst of your loss do what you could to prevent this kind of
tragedy from occurring to other people.
I know that there are a lot of different things that you
have dealt with and faced so I suppose my first question, and I
am going to ask the rest of the panel members to respond to it
as well, if you could be the person to write a one, single,
provision in Congress that you knew would pass from this moment
as a victim of crime, as someone who's lost a loved one, with
all of the myriad abuses that sometimes the system puts upon
you, what is one thing that you would do that you think would
address the most egregious or the most hurtful challenge that
you face? One thing, the top one.
It is so hard in these situations always to find--we are
all about trying to find priorities here but I don't think
anyone can point to that better than someone like yourself who
has faced it so personally.
Ms. Culberson. It is hard to make a list of priorities
because obviously my first priority is in finding my daughter.
So I think these other ladies would better address that because
I obviously have my own agenda, which again would be to find my
daughter and it is going to take more than one issue, I
believe.
But, again, the reason I am here is to ask for mandatory
testing on a national level and then a repository. That would
not only help me, but also if you get on the National Center
for Missing and Exploited Children and look at all the
unidentified, it is unacceptable because we have the technology
today to identify these people.
So priorities, again, mine is in finding my daughter. So to
list them--so, thank you.
Mr. Franks. Thank you, Ms. Culberson.
Ms. Leary, given your experience of having dealt with many
victims of crime, if you could put one thing, what would it be?
Again, the question is a cogent one because so often times that
is the challenge of every government, of every logistical
organization is finding the things that matter most because
oftentimes we address a lot of the ancillary issues and really
don't get to the ones that are of most significance.
I think there is a heart here for the issues that we are
facing today that transcend party lines and philosophies and
everything else. The challenge is knowing what to do would be
the most pressing and the greatest priority.
Ms. Leary. The National Center for Victims of Crimes has
worked on a number of legislative proposals; restitution, and
so on. I think that those are all really significant.
I think I would say though that if you make a promise to a
victim, fulfill that promise because life is full of broken
promises for every victim of crime in this country and so when
a statute is passed and it authorizes funding for desperately
needed services for crime victims, appropriate that money and
make sure that money gets out there because otherwise we're
setting them up again and we're breaking promises and victims--
even victim service providers are--we're breaking promises to
them and they care so desperately about the clients that they
serve.
That would be my recommendation, do not make premises that
won't be kept.
Mr. Franks. Authorizers forever have wanted to make it
absolute mandatory law that appropriators had to do exactly
what we told them.
Professor Goldscheid.
Ms. Goldscheid. Thank you. I was going to say at this point
in time, enforcement. I don't know that there is one magic
bullet that will be the answer to victims' needs. I think that
many, many improvements have been made in the law and as we
stand now from a practical perspective I think one of the most
important things that Congress can do is--I mean I would agree
to fulfill the promises that have been made, and I would just
emphasize the economic ramifications of crime; that from the
victims I have worked with, one of the most devastating aspects
in addition to needing support for emotional recovery is to
help with the economic ramifications of crime.
So enforcement particularly of restitution, of victims'
compensation programs and of course provisions that can help
victims move on to economic independence are critical.
Mr. Franks. Thank you, Mr. Chairman.
Thank you, ladies. My time has expired.
Mr. Chabot. We would be happy to extend another minute to
Ms. Garvin to answer there. She's chomping at the bit.
Ms. Garvin. It is mostly an echo, so I will be quick. I
want to point out one provision in the CVRA that I think is
critical in the appropriation aspect of this, which is what I
would recommend, which is the appropriations for supportive
legal services in Federal jurisdictions, but there's another
provision there and in the States and tribal governments that
have substantially equivalent laws to the CVRA.
When the CVRA and other victims rights statutes are fully
funded there is the potential that States will come into
compliance with these laws and have justice in their own State
systems for crime victims, which I believe is the ultimate aim
of every victims' rights statute.
Mr. Franks. Excellent. That was worth waiting for, Mr.
Chairman.
Mr. Chabot. Thank you very much.
Thank you, Mr. Franks.
The gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, I have always thought, and we've
heard this during the testimony, that I think this is as much
an appropriations issue as a rights issue because if the
prosecutors had half the caseload, they would be much more
likely to have some time to politely talk to people rather than
being rushed and rude.
Also, if you had more victims' advocates, and that's
appropriations, you would have somebody there that could help
the victim all the way through the process.
Let me ask a couple of specific questions. Victims of crime
compensation, we have heard testimony there's not enough money.
How close are we to appropriately funding that so that victims
can in fact get some compensation? Does anybody have a number?
If not, that's fine, but obviously that would go a long way in
helping.
Ms. Goldscheid. We would be happy to look into that.
Mr. Scott. The money we appropriate, where does it go? Do
victims apply directly there or do we fund organizations that
get money that they apply to for compensation?
Ms. Goldscheid. The victim compensation programs are run
through the States and so it is really--the funding for them is
really twofold. One part of it--one part of the funding goes to
actually create a pool of funds that victims can access that
can help them pay for their concrete needs resulting from the
crime. For example, for medical expenses, for travel, for lost
wages and that kind of thing. Another----
Mr. Scott. Where does the victim apply to get the money?
Ms. Goldscheid. At State agencies through staff that are
funded through VOCA. So when many of us speak about the
importance of retaining the funding for VOCA, that's one of the
things that those funds are used for. They fund staff people at
local agencies that take complaints, that take applications
from people, help guide them through the process and help
ensure that those funds--that the applications are processed.
Mr. Scott. Some of us have suggested that one way of
getting the money is through some of these forfeitures in drug
cases, for example. Rather than the money going to the police
department, that money ought to go to the crime victims fund,
which would create some more funding for the victims. The law
enforcement ought to be funded through direct appropriations.
Have any of the organizations suggested that the
forfeitures go to the crime victims fund rather than to the law
enforcement agencies?
Ms. Leary. Not that I am aware of. I don't know if that has
been suggested. We would be happy to canvass and get back to
you.
Mr. Scott. One of the things, some of this is speculated,
assumed it wouldn't happened, just speculated we might have
trouble with the definition of victim; gangs shooting at each
other or somebody making false accusations and that kind of
thing could create a havoc on who the victim is.
Can you assure us that that has not been a problem, that we
don't need to redefine victim? That hasn't been a problem?
Ms. Garvin. In the case law to date it hasn't been a
problem that we've noticed.
Mr. Scott. Again, back to the appropriation, just going
through the articulated rights, the right to be reasonably
protected from the accused, who should pay for that, providing
the protection? How do you provide the protection?
Ms. Leary. I think that protection has to be provided by
law enforcement effort. In terms of where the funding should
come from, I don't think you're going to get adequate
protection if you're going to rely on local police departments
to provide that. They simply----
Mr. Scott. Are you just looking for a court order? That's
what you mean by protection?
Ms. Leary. No, actually. That's one way. That's one
interpretation of protection, that's one way to get it, through
a stay away order. But in other instances there may be a need
literally for law enforcement to get involved for protection.
Mr. Scott. The right to proceedings free from unreasonable
delay, one of the reasons we've had complaints about some of
the things when we were trying to pass this is from prosecutors
who for one reason or another might not be ready for trial and
might not want the defendant to be tipped off. Have we had any
feedback from prosecutors that that has been problematic?
Mr. Chabot. The gentleman's time has expired but the
witnesses are welcome to answer the question.
Mr. Scott. Do people insist on a speedy trial from the
outside, not the defendant, not the prosecutor, but the victim
insist on a speedy trial? Have we had complaints from
prosecutors that that is maybe complicating the prosecution?
Ms. Leary. The feedback we've gotten at the National Center
does not indicate that. It indicates that in a couple of
instances in fact the prosecutor used this act to advocate for
it. But I would suggest that perhaps DOJ could address that
issue in its statement to the Committee.
Ms. Garvin. If I may just add quickly, at NCVL we have not
heard of that being a problem either and there is case law
outside the CVRA that talks about that this right would be
balanced against the other interests, the defendant's interest
and the Government's interest in being prepared and a judge
would have to do the equation there. But we have not heard of a
problem with this.
Mr. Scott. Mr. Chairman, could I ask another question?
Mr. Chabot. Yes. Without objection, the gentleman is
granted an additional minute.
Mr. Scott. The right to be excluded from court, that kind
of bumps up against a constitutional right to a fair trial.
Have we had any problems with the application of a right not to
be excluded?
Ms. Garvin. There is one case that has addressed the issue
of a victim's right to attend under the CVRA and that was a
motion by the Government to allow the victim who was also going
to be a witness to be present, and it was granted.
The interesting thing about the right to attend is the
potential for it to abut the defendant's fair trial right is a
bit overstated. There is no case in this country that talks
about that head-to-head conflict, and if you go back to the
origins of our country victims were allowed to be present
throughout the entire prosecution. And there is a recent law
review article by Judge Cassell out of the Federal District of
Utah addressing this and doing a historical analysis of the
right to attend and when it does or does not abut a defendant's
right.
Mr. Scott. We have been able to apply that right without a
problem with cases getting thrown out, without adversely
affecting the prosecution?
Ms. Garvin. That is correct.
Ms. Culberson. I am sorry, but I was not allowed to attend.
We had four trials, five actually, but I was not allowed to be
present for four of those.
Mr. Scott. Let me ask Ms. Garvin, are people still
excluded?
Ms. Garvin. They are still excluded because the myth of the
head-to-head conflict between these rights still exists and
that is part of why education as well as attorney
representation is needed for the crime victim so that they can
go in and make the legal argument and explain to the courts why
this is actually not a conflict.
Ms. Leary. There may be some issues about a rule on
witnesses. If a victim is going to testify or if a family
member is going to testify in the trial, there may be a rule on
witnesses, which would exclude them because of the concern.
Mr. Scott. That's our point. You assume they're going to be
a witness.
Ms. Garvin. The thing there is that a rule is necessarily a
lesser legal value than a statute and now there's the CVRA
statute that's very clear.
Mr. Scott. If the victim is not going to be testifying, of
course they would be able to be in court. It is a public trial.
But if they are going to testify, that's where the question
appears.
Ms. Leary. It seems ironic that the defendant's fellow gang
members may be present for the entire trial and in fact may be
sitting in the back of the courtroom. I use the expression,
they call it in D.C. Superior Court grittin' on the witnesses,
which means making facial expressions and body language that
clearly convey a message to the witnesses and they are designed
to intimidate, and they can sit in the courtroom the entire
time but the actual victim may not be able to. There's irony
there.
Mr. Chabot. Before we conclude I'd recognize myself for
purposes of making a couple of points. It is my understanding
that oftentimes a defense tactic is to call, for example, a
mother or family member from the defense side as if you're
going to use that person as a witness and then not call them.
Exclude them from the courtroom so there isn't a sympathetic
witness that the jury could identify with, for example.
Debra, in your case you said there were five separate
trials and you were excluded on all but one?
Ms. Culberson. Yes.
Mr. Chabot. Would you tell us what the circumstances were,
what you were told as to why you were excluded under those
circumstances?
Ms. Culberson. That I was subpoenaed as a witness and,
again----
Mr. Chabot. By the prosecution or defense?
Ms. Culberson. Well, by the prosecution in three of them
and the defense in one.
Mr. Chabot. My understanding is there had been incidences
of domestic violence by the person who was ultimately convicted
of the murder against your daughter. Was that, for example,
something you could have testified about?
Ms. Culberson. Yes, but we weren't allowed to bring any of
that testimony forward because it showed prior history. So we
weren't allowed to bring that in.
Mr. Nadler. Mr. Chairman, I am missing something here. If
your testimony about, or the presumed testimony, the intended
testimony about prior domestic violence was not allowed to be
brought in because it was about prior events, and I can see a
legal reason why it not be, for what purpose were you
subpoenaed by the prosecution, for that testimony or some other
testimony?
Ms. Culberson. For that testimony. That's the only thing I
can testify to.
Mr. Nadler. You were subpoenaed or put on the witness list
by the prosecution for that testimony?
Ms. Culberson. Yes, sir.
Mr. Nadler. And then kept out of court by whose objection?
Ms. Culberson. I apologize, I don't know the legalities of
everything but----
Mr. Chabot. The point is you weren't allowed to be in the
courtroom while the murder case of your daughter is going on.
Mr. Nadler. Did you ever actually testify in any of these
cases?
Ms. Culberson. Yes, I did. As I said, I can only testify to
Carrie's character.
Mr. Nadler. So you were kept out in four cases?
Ms. Culberson. Yes, sir.
Mr. Nadler. Did you testify in those four cases?
Ms. Culberson. Yes. I testified in five. The defendant's
family was in all of the trials, present for all the trials.
Mr. Nadler. Were they witnesses?
Ms. Culberson. Yes.
Mr. Nadler. They were too?
Ms. Culberson. Yes, sir.
Mr. Nadler. How were they present?
Ms. Culberson. I couldn't tell you that. I don't know.
Ms. Leary. If I may, I think this goes to Ms. Garvin's
point, which is if you are just going by a general rule anybody
on the witness list is not allowed in the courtroom, you're
going to have abuse of process, depending who gets subpoenaed
by whom, or simply have neglect.
The prosecutor may have thought that he or she would be
able to bring in Mrs. Culberson's testimony and then there was
a pretrial ruling that said no, you're not going to be allowed
do that. But Mrs. Culberson needed an advocate there to say,
wait a minute, your Honor, nobody is really thinking about what
would be the problem to have her in this courtroom. Let's
analyze it and let see what she really would testify to and
determine whether that's a problem.
Mr. Chabot. This is a perfect example why a number of us
believe very strongly that a constitutional amendment
protecting victims rights is necessary because you have in this
case two conflicting theory here; one, they shouldn't be there
because it infringes on the defendant's rights to have a fair
trial, the other side, the victim's rights, if they're in
conflict, well, there's just some statute passed, not mumbo-
jumbo but the mushy stuff that we pass or passed at the State
legislative levels. In the Constitution it would mean something
more substantial and be a better chance that victims would be--
--
Mr. Nadler. I think Professor Goldscheid looks as if she's
chomping at the bit.
Ms. Goldscheid. I would make the quick comment I think
other witnesses said earlier, that under the statutory
approach, at least in the initial phases of the rollout of this
law it doesn't appear that the statute poses a problem that
would suggest a need for a constitutional amendment.
Also, many States, if not most States, have State
constitutional amendments that do provide for some measure of
victims rights, in some cases beyond what has been proposed at
the Federal level, and those are rights that victims can look
to in order to allow the appropriate balancing.
In a defendant's rights, their liberty is at stake, it is
different than a victim's rights to safety and to be heard. We
have very different interests that a court would have to
balance that will in my view, for what it is worth, can be done
with a statutory victims' rights amendment.
Mr. Nadler. Also, Mr. Chairman.
Mr. Chabot. Without objection.
Mr. Nadler. I would also like to comment, without all the
details of a given case, the fact is that if someone is going
to be a witness, the traditional rule has usually not always
been that if someone is going to be a witness they should not
be in the court for the reason they shouldn't see what other
people say, which might enable them to change their testimony,
et cetera.
Now if someone is a victim, they have a reason to be in
court; if they're going to be a witness, there's a reason not
to be in court, and depending on the circumstances, those two
varying things, those two clashings have to be balanced and in
many cases it may be that the testimony is of a nature or the
likelihood of there being testimony is of such a nature that
the right to be there as a victim outweighs the problem. In
some cases it may be the other way around.
A constitutional amendment that says they are always right
and they are always wrong is a little rigid and until we see
real problems with the implementation of the statute, I
wouldn't want to go there.
What I was gathering here, and maybe we ought to have laws,
by the way, maybe we do in some States, saying that if someone
puts someone on a witness list who is a victim--and in some
cases it might not be clear who was the victim. That's also a
problem. But let's assume it is clear in a given case. If
someone puts someone on the witness list who's a victim, maybe
there ought to be some sort of a hearing before the judge as to
whether that means--as to whether the claim, if the claim is
asserted, the victim ought to be there is implicated here and
which outweighs the other on a case-by-case basis.
Maybe we need something like that and maybe States have
done something like that, but I think a constitutional
amendment that is--it is very difficult to write one and be
fair.
Mr. Chabot. For reasons of clarification let me just read
something here from the Crime Victims Rights Act that we passed
that is now the law. Rights of crime victims. ``A crime victim
has the following rights. One of them is the right not to be
excluded from any such public court proceeding unless the court
after receiving clear and convincing evidence determines that
testimony by the victim would be materially altered if the
victim heard other testimony at that proceeding.''
So we have dealt with this in the statute. That is one of
the statutes we're discussing here today, although that doesn't
necessarily mean that it changes our mind relative to the need
for a constitutional amendment. But it was dealt with in here.
We have rules in the Committee and that's why this is more
getting into a seminar or discussion here as opposed to a
Committee hearing but, Mr. Scott, since we've gone a little far
here, did you have a point here?
We have votes here on the floor in a moment.
Mr. Scott. My question originally was whether or not Ms.
Culberson originally testified. I think we cleared that up. Let
me just comment that the discussion we're having shows why the
constitutional amendment is inappropriate because you would
have to be balancing a defendant's right to a fair trial with
the victim's right, and in fact balancing them necessarily
would denigrate the defendant's rights.
With the statute, the victim would have all the rights so
long as it does not impinge on the defendant's rights, and I
think that's the appropriate place to be.
Mr. Chabot. What you're doing there is you're putting the
criminal's rights, the defendant's rights above that of the
victim, and many of us believe they ought to at least be equal
and, if not, more tilted to the victim.
Mr. Scott. You can say equal but you are denigrating the
defendant's rights. He's on trial. And if you're suggesting
that there are other considerations and some of his rights
ought to be reduced, then say that.
Mr. Chabot. We're not suggesting reducing, we're suggesting
increasing the rights of the victim.
Mr. Scott. You can do that with a statute. So long as you
do not reduce the defendant's rights.
Mr. Chabot. We now have votes on the floor.
Ms. Culberson, did you have a comment?
Ms. Culberson. I just wanted to say to him that the
defendant's actions is what put him in that position. The
victim is actually innocent----
Mr. Nadler. The defendant's presumed actions because the
defendant is also presumed innocent at that point.
Ms. Culberson. Yes, sir, I apologize. So, again, we're not
being allowed any rights for something that wasn't our doing.
Mr. Chabot. The victim was clearly innocent all along.
Mr. Scott. You have gang crimes, you don't know who's
telling the truth.
Mr. Chabot. I am talking about the cases we've dealt with
here today in particular. There was no question about those.
Again, we generally have a little more formal way that we
run these meetings but we appreciate the indulgence of our
excellent witness panel here this afternoon. I think you have
helped us very much and I have to say that this is one of the
issues that has been dealt with for the most part on a fairly
bipartisan manner. We might disagree on whether we need a
constitutional amendment or not, but we agree that victims
rights should be protected and it is good to see that in this
Committee in particular because we're pretty much on the
opposite sides on most issues.
But the panel has been very helpful. We appreciate your
telling us about the implementation of the acts that we've been
dealing with this afternoon and we'll take that into
consideration in future legislation.
If there's no more business to come before the Committee,
we're adjourned. Thank you.
[Whereupon, at 2:38 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Response from James H. Clinger, Acting Attorney General, to
Post-Hearing Questions
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Response from James C. Duff, Secretary, Judicial Conference of the
United States, to written questions from Chairman Chabot
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Written Statement of the Honorable Collene Thompson Campbell
Chairman Chabot, Ranking Member Nadler and Committee Members:
As the first victim of crime to be allowed to deliver a statement
in a federal court during sentencing of a convicted felon, I thank the
legislators who worked to bring forth this meaningful action, paving
the way for better equality for the rights of victims in their pursuit
of fairness and balanced justice.
Our family is one of the hardest hit victims of crime in the
nation. We do not want to be perceived as whimpering or looking for
sympathy. Our desire is to bring to you just a small sample of the
``real world'' of a crime victim, furnishing you with accurate and
experienced information acquired during a quarter of a century of
continually being treated unjustly as compared to the accused criminals
who have destroyed the lives of good hard working citizens.
You and the members of the House and Senate are to be commended for
passing the federal Crime Victims' Rights Act, signed by President Bush
into law October 30, 2004. We were honored that the name of our
murdered son, Scott Campbell, was selected, with others, to have the
Act named for him.
It was extraordinary how the timing of our statement fell into
place, as it wasn't planned or anticipated. But, apparently it was in
God's plan that we, Scott's mother and father, were to be the first to
stand before a federal judge to make a statement in the sentencing of
the criminal.
The question may be asked, ``Did our statement during sentencing
change the fact that the felon had stolen our retirement, our
grandchildren's education funds, the reward fund for information
leading to the gunman in the murders of my brother and sister-in-law,
Mickey and Trudy Thompson, or the total loss of our deceased seventeen
year-old grandson, Brian Scott's Memorial Fund, nor the fact that 1602
other folks, mostly retires lost their life savings?'' The answer is
``no''. Nothing changed financially for any of the victims because of
our sentencing statement. However, did it give the sentencing judge a
better representation of the impact caused by the fraud on the victims?
Absolutely, yes! We were able to offer the judge, in front of the
perpetrator, a realistic and true picture of his twenty-year crime
spree and the damage caused by this huge scam that hurt so many.
Honest law-abiding citizens are grateful for the federal ``Crime
Victims' Rights Act'' that could have meaningful influence on the one-
percent of crimes committed in our country, which fall under the
federal jurisdiction. However, we also need to be deeply concerned
about justice for the other ninety-nine percent of crimes tried in
state courts and the resulting victims who do not share equal rights
and where, in fact, in many cases the victims have no rights.
As a family that has suffered the sad experience of horrible crimes
at both the federal and state level, we remain deeply concerned
regarding the injustice and devastation that crime victims are forced
to endure at the state level. The realization that about sixteen
thousand murders are committed annually within the jurisdiction of
state government should certainly bring into sharp focus the horrible
reality that accused criminals have twenty-three rights in our U. S.
Constitution and crime victims have not one single right. At the time
our U. S. Constitution was drafted, it made sense to make certain the
accused had rights. Because, in those times, victims represented
themselves: they were notified, present in the courtroom and were
allowed to be heard, among other rights. It is a much different time
today and it is far-past time to consider the victim's lack of rights.
(Note: Referring to sixteen thousand homicides yearly does not reflect
on the millions of other violent crimes that creates more victims.)
Our family, along with millions of others, have been deeply hurt
and impacted by the disproportionate justice system that gives, not
just ``more'', but all rights to an evil killer and none to their
victim and their families.
We, the mother and father of a murdered son, were excluded from the
courtroom during all three trials of his murderers, while the killers'
family sat inside and were present during all proceedings. The defense
used their usual scheme that we were to be a witness. Naturally, we
were the last people the defense truly wanted on the witness stand.
However, as is customary all across our nation, the defense was able to
pull off another fraud against the victim's next of kin.
Following the first conviction of one of our Son's killers, we were
not notified of an appellant hearing, and therefore, we did not know
the case had been overturned until we were informed by the media that
the murderer of our Son, who was charged with first degree murder with
special circumstances, had been released back into society in
opposition to the state constitution.
In addition, it has been more than eighteen years since my only
sibling and his wife, Trudy and Mickey Thompson, were murdered and we
have yet to get to trial. We have been in court sixty-four times and
still do not have a trial date, because we, the victim, do not have a
right for a speedy trial, only the accused has that right. And, again,
I'm told the defense has me on their witness list so they can exclude
me from the trial, and therefore, I would be unable to inform the
prosecutor if lies are being told under oath.
In our family's world, our only Son was brutally murdered,
strangled and thrown into the Pacific Ocean and we never found his
body. Our brother and sister-in-law were shot to death in their
driveway as they were leaving home to go to work. We have had our
retirement and lifetime savings stolen. We have not given up on the
hope of justice as we continue to work with law enforcement,
prosecutors, legislators and victims to help balance the scales of
justice. We have accepted key roles in local, state and federal
government. Fortunately, many are trying to improve our out-of-balance
justice system, but more legislators must help and not permit outside
influence, such as pressure by defense attorneys to manipulate and
influence their thinking and their votes.
If you look at the statue of Lady Justice holding the scales of
justice, you will note her eyes are covered. I would guess that even
she does not want to witness the inequities now taking place in our
justice system. We tie the hands of our police and continue to give
evil criminals all the rights as they persist to demean our law
enforcement protectors.
We have made a notable, but small start for victims at the federal
level, however, it is critical for our legislators to strongly pursue
adding a Victims Rights Amendment to our U.S. Constitution. Only, ``one
percent'' fairness to victims of crime is not adequate or acceptable
for the citizens of this great nation.
For this record, I would call your attention to a DVD nearly
completed, designed and intended to help train victims to understand
and better work with law enforcement to help solve cases. This
information is being supplied to help fill the huge void, as unlike the
accused, there is no one to direct a crime victim how best to proceed
in being helpful and not damaging the case.
The victims' information DVD is being developed by the California
Peace Officer Standards and Training (POST), where I happen to be
completing my third term as Chairman. In the two-hour presentation the
film utilizes judges, a public defender, victims of violent crime and
prosecutors who have volunteered their time. No person is prepared to
be a victim of crime and we hope this presentation will increase
understanding, decrease misconceptions and help victims to endure the
horrible pain and experience with pride and courage that will help
bring justice.
I respectfully request, that just for a moment as you read this
statement that you, as an American, try to put yourself in the
undesirable position of being forced to undergo the horrible tragedy of
your closest loved one being murdered. I guarantee that if you are a
honorable person with loyalty and integrity that no matter the depth of
your pain, your first desire is to help bring justice for the crime.
However, because you would have no victim's rights, you would be
excluded from contributing to bring forth justice.
On the battlefield we teach and encourage our American Servicemen
to exercise courage, integrity, loyalty and to fight for what is right.
Why then, do we not ``permit'' our crime victims to have the same
right? Instead they are nearly mandated to abandon their murdered loved
one. There are those of us who choose to display honor, courage and
contribute to the fight for justice.
How would you feel if it was your murdered loved one? If possible,
or if you were needed, wouldn't you want to be a small part of helping
to bring justice for your murdered loved? We ask our legislators to
help supply us the tools.
__________
Federal Sentencing Statement of the Honorable Collene Thompson Campbell
to U.S. District Judge Cormac J. Carney during the James P. Lewis
SENTENCING
Your Honor:
As all victims can confirm, it is tremendously difficult to stand
before the court and publicly speak about the financial and emotional
pain that James P. Lewis has caused. It is embarrassing and agonizing
and no matter what we now do, or say, it won't change the devastation
that this individual has perpetrated. However, we feel it is our duty,
as good citizens to furnish you with a tiny amount of information that
may assist you in your very important and meaningful sentencing
decision. Today, the victims are trying to do the honorable thing by
giving you the human and painful facts that are not available
elsewhere. The injured parties want to make certain that James Lewis
never has the opportunity to again destroy the lives of good people.
In addition to our family, twenty-three other families who are
victims of James Lewis have requested that I speak on their behalf, six
are standing here with me, some are too old and too ill to make the
trip. I believe I am also speaking for the 1602 other families who have
been financially devastated by James Lewis.
Your Honor, thank you for letting our voices be heard. We hope and
pray that information regarding some of our sad experiences and true
realities will aid you in your decision.
Because of the despicable actions of this individual the majority
of his victims can never recover financially, nor can we live the life
that we had planned and worked our lifetime to achieve.
Lewis' victims were not stupid people. We asked questions and he
responded with ``carefully crafted'' documents and lies for answers. We
received encouraging information and very timely reports through the U.
S. Mail, they too were lies and fraud generated by James Lewis. We
visited his office numerous times, talked with him and his staff and
believed we had asked the appropriate questions. We even asked the
tough question, ``What would happen to our investments in case of his
untimely death'', and were reassured with his answer. We searched for
possible unethical behavior. Your Honor, this man is an all-time great
``con-artist'', there is absolutely no question regarding that issue.
Lewis has deceived, lied and intentionally swindled and defrauded
countless hard working honest citizens.
Your Honor, today, we're asking that you not allow this heartless
thief to also ``con'' you, as he has so many of us.
We request that you not reduce his sentence because he ``pled
guilty'' and, therefore, he was able to have twelve of his fourteen
felony counts dropped. Remember, his guilty plea came only after a
nationwide search for him, where he was chased down and arrested as he
attempted to flee the country. And, we all know Lewis was very aware
that evidence had piled up against him for his many years of committing
cold-blooded fraud. It is clear and unmistakable that his only remorse
is the fact that he was caught and now must face incarceration for his
evil acts.
Every person who makes investments understands there are risks.
Risks of business failures, or a down turn in the economy. However,
with James Lewis, it had nothing to do with business, or the economy,
it had to do with his deception, lies, infidelity and his implausible
betrayal of employees, family, friends and clients.
For nearly two decades, Lewis' crimes have been selfish, mean-
spirited and calculated. He is the worst kind of criminal, he does not
deserve leniency in any form.
Lewis' criminal acts were not just fleeting, or spur of the moment.
His deceit and thievery were malicious and carefully planned on a daily
basis for nearly two decades.
Your Honor, this ``so called'' man, who takes from children and
little old ladies, has earned and certainly deserves, at the very
least, the maximum prison sentence of thirty years, please don't give
him less time.
He cruelly stole the money that families had saved for the
education of their children, grandchildren, old age and even their own
funerals.
He stole our only Granddaughter, Melissa's, wedding gift, a gift
that we had been working to save for 23 years, ever since her birth. It
was saved to give a good start to Melissa and her chosen husband and it
was a large down payment to purchase their first home and it was to be
a Christmas surprise. The beginning of that savings was left to her by
her Uncle Scott, our Son, upon his death in 1982. It is ironic that the
``Scott Campbell et al Crime Victims' Rights Act'' signed by the
President, October 30, 2004, is the Federal Act giving victims the
right to be heard at sentencing, like today. The Federal CVRA was named
after Melissa's Uncle Scott, our Son. Yes, the same Scott that
originated the beginning funds for Melissa's wedding gift! Obviously,
that Christmas, pre-wedding gift was to have great sentiment and the
announcement of their gift was already wrapped with loving words and to
be a surprise and given on Christmas morning to Melissa and the man who
was soon to become her husband. We were so excited but, sadly,
Christmas Eve, the surprise was on us, as we read in the newspaper
that, the gift which had taken ``Melissa's life time'' to save, had
been stolen by James Lewis. Your Honor, Melissa is standing with me
here today.
Lewis also squandered our grandson, Edward Mickey's educational
money and Eddie is due to enter college this fall. This is Eddie's
mother, Shelly and I just spoke to Eddie on the phone and he wanted you
to know that his thoughts and prayers are with us here in this
courtroom today. As if that wasn't enough, James Lewis ruthlessly
consumed the educational funds saved for little six-year old twins,
John and Jenna Graupman whose Mother and Father are both fighting
cancer.
On top of all his other cruel acts, James Lewis, knowingly and
callously stole the very large fund that we had offered as a reward for
information leading to the arrest and conviction of all those involved
in the murders of my Brother and Sister-in-law, auto racing legend
Mickey Thompson and his wife Trudy. Lewis knew what those funds were
earmarked for, but he didn't care!
In 2001, during another tremendous heartbreaking time, we wrote a
letter and also trustingly spoke with Lewis about the tragic accidental
death of our 17-year old grandson, Brian Scott Campbell. (Brian's
mother, Shelly, is standing here, next to me.) We remember the day
well! With painful tears running down our cheeks, Gary and I explained
to Lewis that we wanted to create a Brian Campbell Memorial Foundation
fund ``In memory of Brian'' and give college scholarships to students
who were doing ``good things for other people'', just like Brian had
always done.
James Lewis knew exactly what he was doing when he latched onto
that meaningful scholarship fund. Prior to our knowledge of the Lewis
fraud, we had previously announced several recipients of the
scholarships. Like all the other accounts, Brian's Memorial Foundation
account money was gone. However, because, we had announced the
scholarship recipients, we of course, still honored our commitment to
give the scholarships, even though Lewis, himself, had taken the
scholarship moneys.
Prior to learning of the fraud and our huge loss, we felt we were
in good shape financially and we wanted to share and give to others. .
. .
An example: In my honor and to surprise me, my very good husband of
55 years, Gary, volunteered to donate $140,000 that would build a stage
in the City Park of San Juan Capistrano, for the entire community to
enjoy. After his commitment to building a stage and before his actual
donation was made, we learned of Lewis's theft of all our funds from
all of our accounts. No one in town knows the problem that Lewis caused
us, or that the stage money was hard for us to obtain, but unlike James
Lewis, we are people of our word and the funding for the stage was made
to the City and the stage was built and is being enjoyed.
Lewis' thievery forced our only daughter, Shelly, to sell her new
home. Also invested with Lewis, was sizable amounts of money for
retirement for our good friends Socorra Quezada and Carol Day, (both
here with me today), plus, Bill Marcel, (the gentleman on my right)
lost a sizeable amount of money along with seven other wonderful and
loyal friends and relatives that lost their retirement savings, along
with us.
Oh yes, Your Honor, we have worked extremely hard all of our lives
and I believe we are very generous and giving people, and Lewis hurt
our family and friends ``big time.''
James Lewis did not make a mistake in investing our money, he
didn't invest it at all and he never intended to invest it. He just
stole it. He knowingly and maliciously lied and deceived his
unsuspecting victims by robbing them of their assets. Among many other
disloyal acts, he squandered ``our money'' on buying his girlfriends
multimillion dollar homes, financed by ``us'', his victims.
From the day Gary and I were married, at only 18, we began saving
to help our family and to assist others. In order to plan for the
future we denied ourselves expensive clothes, vacations and fancy
automobiles and we saved for the time when we could no longer work.
That time has come, but along with hundreds of other retirees, Lewis
stole our hard earned nest egg and our retirement fund.
Lewis didn't commit his crimes in a fit of passion, in anger or
without thought. For more than nineteen years, that's more than 6,700
nights he went to sleep, scheming how he could steal money and recruit
more victims with his convincing lies, all the while, knowing full well
sooner or later he was going to make his victims suffer.
Well, we are suffering and yet, all those thousands of nights,
James Lewis could sleep and carouse while he was sucking the life-blood
from his victims. He committed these acts with full knowledge of the
devastation his lies and his own selfish personal life style of luxury
would cost his victims. That, Your Honor, is an evil man.
It is painful and I don't like standing up here whimpering, and
talking about our personal life. And, pleases know, I have only
slightly touched on ``our real world of grief and damage'' James Lewis
has caused to our family and hundreds of others. Multiply the damage by
his 1602 victims just like us, the damage and devastation is huge.
James Lewis is still in his mode of a full-time con artist, a
swindler, a cheat and now he is lying to the court and trying to buy
``time-off'' from incarceration in prison by admitting guilt and
showing remorse. He talks about the Bible and his closeness to God.
This is the same man, that along with his other victims, he double-
crossed his Mormon friends and left many without their retirement nor
money for the future. He has no shame.
Your Honor, I hope the court has the courage to do what hundreds of
us were unable to do. Stop James Lewis from being successful with
another con job, and further exercising his proven deceit in his
disgraceful attempt to shorten his prison sentence.
James Lewis has proven to be the ultimate malicious mean spirit. He
has earned and deserves the maximum sentence provided by law, which is
thirty years.
Your Honor, in prison, he will still have more than he left many of
his victims, as he will have housing, food, attorneys and medical care,
all paid for with our tax dollars.
Thank you for allowing me to be heard on behalf of those standing
here with me, plus the long list of Lewis' victims. I will be happy to
answer questions.
Following are Victims of James P. Lewis who asked me to speak on
their behalf.
Edward Mickey Fischermann
Melissa Campbell
Shelly Campbell
Gary Campbell
Brian Scott Campbell Memorial Scholarship Foundation
Carol M. Day
Socorro Quezada
Karen Maxwell
Ron and Carol Campbell
Jena Lynn Graupman
John Edward Graupman
Peter and Sharyn Buffa
William Marcel
Rod Millen
Scott Heinila
Gayle Hickey Burke
Kendal Carre
Denise Dee Piazzo
JoAnne McCaslin
Tami Salcido
Bob Neilson
Chuck and Elsie Neilson
United States of America v. United States District Court for the
Central District of California, Petition for Writ of Mandamus to the
United States District Court for the Central District of California
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