Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

WENDY MURPHY: Judges, jerks and the evolution of victims rights






































The Patriot Ledger


Posted Jul 18, 2009 @ 05:04 AM






QUINCY —




Much of my work is focused on scholarly activism for crime victims,
though I also provide direct representation for victims in criminal
cases. It’s usually uneventful – but a minority of judges go out of
their way to make things unpleasant.


 Here’s a sampling of what I mean.



I once filed a motion in a Nebraska case to overturn a judge’s order
forbidding a rape victim from using the words “rape” and “victim”
(among others) during trial. Even though I was right that the order was
unconstitutional, and a federal court ruled that such judicial
censorship was reminiscent of the law in countries wear women wear
“burkas”, the judge was so outraged that a victim would challenge his
authority, he threatened that I could be charged with a crime for even
representing her.


 Then there was the judge in Texas who
issued an arrest warrant against my client, a victim’s therapist, w
hen
she refused to turn over a privileged treatment file. Federal officials
agreed with me and refused to execute the warrant – but the judge’s
arrogant annoyance toward me for defying him him permeated the
proceedings.


 In a recent Massachusetts case, I appeared
before Judge Leila Kern on behalf of a 7-year-old sex abuse victim. The
little girl’s mom asked me for help because the case had been delayed
many times. It was supposed to go to trial early this year but was put
off at the last minute. The child was very upset because the defendant
was out on low bail and she was convinced he would find her and hurt
her again. I explained that crime victims have a right to a “prompt
disposition” and I went to court to tell the judge about the nature of
the little girl’s distress. Then I asked the judge to take “all
appropriate steps” to protect the child’s right to a “prompt
disposition.”


 Judge Kern replied that she didn’t need to
be told by me that the child was suffering. She even refused to respect
the child’s constitutional right to be heard, stating: “I am not ruling
with respect to substance, even including whether or not these motions
may be accepted. Okay. Is that clear enough, Attorney Murphy?” I
smiled, knowing her response was more than clear enough for this
column.


 I had a very different experience a few months
later in front of Judge Michae
l Pomarole. I asked him to order a
defendant to reimburse a victim for money she paid to her therapist for
time spent responding to the defendant’s request for her confidential
treatment file. The judge was initially annoyed and disinclined to even
consider my request. I knew this might happen because no attorney had
ever filed such a motion before. But he listened carefully to what I
had to say – and eventually ruled that the accused should repay the
victim more than $500.


 Unlike many judges, Pomarole was
able to challenge his own biases about whether it was proper for a
victim to have her own attorney in a criminal case. And he had the good
character not only to change his mind, but also to explain his
reasoning – emphasizing that no victim should be forced to spend money
in the pursuit of justice.


 All four cases show that while
some judges are just jerks, the overarching problem is that victims
usually don’t even know they have rights – which is why most judges
react badly to the few who speak up.


 Organizations like
Community Voices, Justice for Children, the It Happened to Alexa
Foundation and the National Crime Victim Law Institute are helping to
educate victims and provide free legal services in criminal cases, but
more needs to be done.


 After 20 years, I can see that
things are getting better. But the rights of the innocent who have
suffered enough at the hand of criminals are viol
ated with impunity all
the time in courtrooms across the country.


 Let’s hope the
next step in the system’s continued efforts to be more respectful of
victims is a more careful screening and training of judges so that the
Leila Kerns of the world either change their ways – or lose their job.



                    Wendy
Murphy is a leading victims rights advocate and nationally recognized
television legal analyst. She is an adjunct professor at New England
Law in Boston and radio talk show host. She can be reached at