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September 23, 2010

Notable Third Circuit ruling in CVRA case concerning victim's right to counsel involvement

A helpful reader forwarded me a notable little ruling from the Third Circuit earlier this week concerning whether the Crime Victims Rights Act gives victims a right to have their counsel involved in sentencing proceedings.  The short ruling in In re Zackey, No. 10-3772 (3d Cir. Sept. 22, 2010), can be downloaded below, and here a key portion:

Petitioner David Zackey, victim of a fraudulent scheme perpetrated by Defendant Joseph P. Donahue, seeks a writ of mandamus to enforce his right under the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771(d)(3), to be reasonably heard at sentencing. 18 U.S.C. § 3711(a)(4). Under Count Fifteen of the Indictment, Donahue was found guilty of credit card fraud under 18 U.S.C. § 1029(a)(2) for engaging in a course of conduct in which Zackey was victimized. Zackey seeks full restitution as provided by law, including attorneys fees, and an upward departure of the sentencing guidelines.  Zackey contends that the District Court failed to afford him the full scope of his rights available under the CVRA by improperly denying his motion to allow Attorney Jessica Richman to enter an appearance on the record and represent Zackey at sentencing.  Because we find that the District Court did not abuse its discretion, his petition is DENIED.

The CVRA provides that a “crime victim or the crime victim’s lawful representative, and the attorney for the Government” may assert a victim’s rights under the act. 18 U.S.C. § 3771(d)(1). In denying Richman’s motion to enter an appearance, the District Court held that the CVRA “does not require that [a victim] be represented by counsel when being heard, or that victim’s counsel be allowed to speak during the sentencing or any other proceeding in the case,” and it concluded that the assistance of the U.S. Attorney would be “sufficient for determining a proper sentence.”  Significantly, the District Court held that it “recognizes that David Zackey has a right to be heard regarding the defendant’s sentence and any restitution ordered in this case, and nothing in this order precludes the victim from exercising that right.”  Subsequent to the District Court’s order, the government filed Zackey’s motion for restitution and attorneys fees under the name of the United States Attorney’s Office.  Additionally, it has represented that it will seek an upward departure of the sentencing guidelines on account of Donahue’s acts that precipitated the destruction of Zackey’s credit rating and caused him severe emotional trauma. Because the government has not entered into any agreement that would compromise its ability to advocate unequivocally at sentencing for the rights of Donahue’s victims, these measures ensure Zackey’s rights under the CVRA will not be diluted in the absence of individual counsel.

Download Zackey ORDER_3rd_CIr_

The helpful reader who forward this ruling to me refers to Zackey as a "victim Gideon case."  In one sense, this reference seems somewhat apt because it seems like a stretch to expect that victims will always (or even usually) be able to secure all the rights to which they are entitled under the CVRA without the assistance of a lawyer in the courtroom.  But, obviously, the context and legal issues here are distinct: the right to counsel for criminal defendants is set out in the Constitution, and at issue in Gideon was whether the state had to provide counsel to defendants who could not afford them; there is no comparable right to counsel for criminal victims, and at issue in Zackey is not whether the victim could get counsel from the state but whether his retained counsel would be allowed to represent his interests in court.

September 23, 2010 at 09:41 AM | Permalink


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