Crime victims seek more say in judicial process
Victims tell of being overlooked by prosecutors
By Lisa Black, Chicago Tribune reporter - November 7, 2011
Years after her 11-year-old daughter was sexually assaulted, Denise Rotheimer wants the right to sue the Lake County prosecutors who sent the offender to jail, saying they defamed her child by telling the judge that the girl "had issues."
In Cook County, Maria Ramirez believes prosecutors violated her rights by refusing to let her file a complaint after she was threatened by relatives of a juvenile charged with her son's 2006 murder.
Both women found that — after floundering through a complex criminal justice system that critics say is weighted toward ensuring the rights of the accused — their rights as crime victims were unenforceable.
Victims of violent crimes "are not the people you want to further victimize or betray," said Rotheimer, who along with her daughter, Jasmine Jimenez, now 21, has filed a federal lawsuit against the Lake County's state's attorney and the state of Illinois. She hopes it leads to a precedent that prosecutors can be held legally accountable.
"I am saying, let's have a right to be able to hold accountable a person who violates or denies you your rights to justice, prosecutor or not," Rotheimer said.
The Illinois Constitution already provides 10 rights for crime victims, including that they be treated with respect, given notice of court hearings and be allowed to attend trials and present victim-impact statements.
But if those rights are violated, there's no mechanism for a crime victim to appeal to a higher court, said Cindy Hora, who heads the Illinois attorney general's crime victim services division. And Illinois is the only state whose constitution specifically prohibits victims from seeking legal remedy through an appeal, Hora said.
Now Illinois advocacy groups have joined a national push to amend state constitutions and give teeth to statutes already on the books. Few share Rotheimer's goal, to make prosecutors personally liable for violating crime victims' rights. But most share a desire to allow victims a voice during the judicial process.
The Illinois Coalition for Enforceable Victims Rights has proposed its version of a constitutional amendment approved by California voters in 2008, called Marsy's Law.
For years, the criminal justice system worked at making the process fair for the accused, advocates say. Now crime victims want more control within the process.
The brother of murder victim Donna Schnorr, for instance, would have liked to have had input on the plea deal offered to confessed murderer Brian Dugan when he was initially sentenced in 1985 to two life sentences in prison for the murders of Schnorr and a 7-year-old girl. Later, Dugan was given the death penalty for the murder of Jeanine Nicarico, 10, of Naperville, but was spared execution when Illinois abolished capital punishment.
"We would have preferred to have a say-so in the sentencing," said Roger Schnorr, of Aurora, who wanted the death penalty for Dugan. "He clearly is the guilty party and deserved much worse than what he received."
Other survivors of violent crimes complain that court schedules and plea bargains are changed without their knowledge, said Diane Mayfield, a victim services director for the Western Illinois Regional Council-Community Action Agency in Macomb.
Mayfield recalled a teenage girl whose father pleaded guilty to sexually abusing her. The teen wanted to read her victim-impact statement in court, but the judge said no because the defendant had already seen it.
The teen wanted to "see his reaction when she told him how what he had done to her had impacted her," Mayfield said.
But in Illinois, allowing victims a bigger role in court has been controversial.
"In some ways, crime victims are the odd man out in the criminal justice system," said Paul Cassell, a former federal judge now teaching at the University of Utah's law college.
"Defendants don't want victims involved in the criminal process because they are afraid the victim will seek harsh justice. The prosecutors don't like to be second-guessed by victims and are used to running the show in a criminal case."
Ramirez, of Chicago's Brighton Park neighborhood, said she and her mother attended an arraignment in 2006 for the juvenile accused of shooting her son. When the boy was denied bail, his brother lunged toward Ramirez and her mother, yelling obscenities and threatening that he was "going to get" Ramirez, she said.
She asked to write a complaint, saying she wanted a written record of the threat, if nothing else. She said an employee with the state's attorney's office said no.
The experience made her feel more helpless during a traumatic time, she said. "You have no rights. You are just another sitting victim."
The Cook County state's attorney's office did not respond to a request for comment.
In Lake County, the state's attorney's office distributes brochures to crime victims outlining their rights and assigns advocates to guide victims through the process. But some argue that because the advocates work for the prosecutor, they have an inherent conflict of interest.
Glenn Gosh, of Lake Villa, believes Lake County prosecutors mishandled his case as the victim of a near-fatal stabbing by allowing the court case to extend over 2 1/2 years. The defendant — his ex-girlfriend — pleaded guilty to aggravated battery in October and received a felony conditional release with no jail time.
"When I am told that this is 'normal' for the system, there should be some serious changes to the system," Gosh said.
His ex-girlfriend, Sherri Marenkovich, confessed to the stabbing during a 911 call, prosecutors said. Still, she maintains that Gosh instigated the attack, and her lawyer, Jed Stone, blamed Gosh during her sentencing, Gosh said. He denies the allegations.
Gosh could have hired his own lawyer for a civil case, but under state law, the state would not be required to include that lawyer in the criminal prosecution. He was assigned a victims advocate but was not happy with her advice.
"The victim needs someplace to go besides the prosecutor's office," Gosh said.
Lake County Assistant State's Attorney Pat Fix said that the prosecutor handling Gosh's case took notes that showed that he heard Gosh's concerns at least 40 times over two years. A domestic abuse advocate also logged dozens of calls from him, she said.
But Fix, chief of the felony trial division, agreed that the case dragged on too long. She said the judge had allowed the defense attorney to extend the case "some 20-odd times."
"I think the majority of the victims who have had the opportunity to work with our state's attorney's office would say there has been an extraordinary passion and compassion in handling these cases," Fix said.
In another Lake County case, Rotheimer alleges that prosecutors never informed her of her rights as the mother of a minor who was sexually assaulted. In 2003, she learned from the attorney representing the defendant that the state was prepared to accept a guilty plea with the minimum sentence of six years.
Rotheimer asked the bailiff to inform the judge that she objected to the sentence. Once before the judge, she disclosed facts that she said the prosecution left out. The state's attorney argued before the judge, saying Rotheimer's daughter "had issues," according to her lawsuit.
The judge threw out the state's plea deal as a result and sentenced the defendant to 7 1/2 years, her lawsuit states.
Rotheimer today believes the only way to protect crime victims is to remove laws that, in nearly every state, grant prosecutors immunity from legal liability while doing their job.
Rotheimer claims in her lawsuit that this immunity violates the due process protections of the U.S. Constitution's 14th Amendment.
But she faces a tough battle, with opposition from mainstream victims advocacy groups that favor working closely with prosecutors.
Lake County State's Attorney Michael Waller, former Assistant State's Attorney Laura Horner and the state of Illinois have filed a motion asking the court to dismiss Rotheimer's lawsuit.
Waller could not be reached for comment.
In California, Marsy's Law increased victims' rights and added measures to enforce them. The law does not allow for a conviction to be overturned. But if a victim argues successfully that he or she was denied rights, such as the right to attend a pretrial hearing, an appellate court can order the court to hold the hearing again, experts said.
The so-called do-over is "pretty rare because once the law says that the remedy can happen, most people are very, very careful," said Meg Garvin, executive director of the Oregon-based National Crime Victim Law Institute. "Most people try hard to avoid that, for judicial economy."
Arizona voters were among the first in the nation to adopt a constitutional amendment protecting crime victims' rights in 1990 after the measure failed twice in the legislature, said Dan Levey, of the Arizona Attorney Genera's office.
Today, the judge reads the crime victims' rights out loud every morning in court. A state-level victims' rights enforcement officer gets involved if complaints cannot be satisfied locally.
But in Illinois, such proposals remain controversial.
"Although I am sympathetic to crime victims, some of the proposed amendments have the potential for doing more harm than good," Darryl Goldberg, a Chicago defense lawyer, said of the proposed legislation in Illinois.
Jack King, staff attorney for the National Association of Criminal Defense Lawyers, based in Washington agreed.
"We have no place for a three-party criminal justice system," he said. "It's the government versus the accused. The government has plenty of resources already. A person might be driven more by emotion and pain than logic and application of the law."
Source: Chicago Tribune