Switch requires caution

Mary Souza began to unfold her umbrella, ready to step out into the rain after wrapping up an order at Staples.

But then the state senator from Coeur d’Alene stopped, turned and decided to add something to the conversation that had been winding up.

It had begun with merely a comment or two about a story that appeared in The Press last Sunday — a long look at the push to get a stronger code of victims’ rights introduced into the Idaho Constitution.

Before she could finish opening her umbrella, Souza had one more thought.

“You know, all we’re trying to do is give victims the same rights under the Constitution that are afforded to defendants,” she said. “It’s about basic fairness toward people who don’t want to be involved in this at all.”

Souza was one of 34 senators who voted unanimously for a new victims’ rights amendment during the 2017 legislative session.

Yet it did not happen.

AFTER THAT overwhelming blitz through the Senate, most observers in Boise assumed that the amendment — named “Marsy’s Law for Idaho” in tribute to a teenager who was murdered 34 years ago — would have an easy ride in the House.

Not so.

After three difficult days, the State Affairs Committee voted 10-5 not to advance the measure to the House floor.

The issue has not gone away, though, not even briefly.

The money and public relations efforts of California billionaire Henry Nicholas, brother of that 1983 victim, have kept the pot bubbling for another run at adding the amendment during the 2018 session.

In truth, this is one of those rare debates in which everyone seems to agree on the general goal. Really, who wouldn’t want to provide victims with all the rights and dignity that any justice system might afford?

Yet there are some legitimate hurdles that will have to be addressed before Souza and her colleagues, hoping to make administration of justice a fairer and less-traumatic affair, can celebrate replacing Idaho’s current victims’ rights amendment.

That version was written in 1994, but it was (and is) an outstanding document. When combined with statutes written since then to fill in some blanks, it certainly can appear to be enough.

IN FACT, one argument that resonated with the naysayers on that House committee was simple: “Let’s properly enforce all our current laws regarding victims, and then see if we still need an amendment.”

However, there was another issue that made some committee members uneasy, and which led to groups like the American Civil Liberties Union and the Idaho Defense Attorneys to oppose the measure.

Might these stronger new rights tilt the courtroom to the point that it becomes difficult to have a fair trial?

Marc A. Garcia is a former defense attorney, prosecutor and district court judge in California, where “Marsy’s Law” first became law — alongside other strong victims’ rights rules in that state.

“As a judge,” Garcia said, “it was great to see these protections. Victims could have advocates right at their side throughout the entire process, including at trial.

“In fact, the victim advocate could speak up to the judge at any point, the same way an attorney could. It gave victims a voice, and removed some of the fear that had been imposed on them.”

Garcia urged caution, however, because he knows firsthand how those scenarios can play out.

FOR INSTANCE, as a defense counsel...

“You immediately feel at a disadvantage,” he said. “You know that it’s likely a jury would see the victim — needing protection from an advocate, even there in court — and immediately your defendant’s presumption of innocence is in jeopardy.

“And as much as I treasure those victims’ rights, that very same presumption of innocence is the cornerstone of the American justice system.”

Would Garcia advocate some form of “Marsy’s Law” in Idaho?

“On balance, I probably would,” he said. “However, you need thoughtful and capable judges; specifically, judges who understand giving proper jury instructions.

“Just a word or a phrase can push a jury in one direction or another, and they’ve just seen the victim with an advocate alongside to ensure, what, a conviction?”

Garcia’s summary for Idahoans: Be very careful how any law is worded, and step cautiously as justice is dispensed.

“In theory, these extremely strong victims’ rights are a blessing,” he said. “With situations like notifications and pre-trial hearings, they’ve made the system so much better.

“And yet...

“In a trial itself, where a defendant might literally be fighting for his life, it can be a pretty difficult tightrope to walk.”

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Steve Cameron is a special assignment reporter for The Press. Steve can be reached at: [email protected].