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May 3, 2013

How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?

Long time readers know that I am a fan of the federal Crime Victims' Rights Act, 18 U.S.C. § 3771, because it gives express recognition of key rights of participation for federal crime victims and provides means for enforcement of these rights. Also, as the title of this post suggests, the CVRA is potentially a law professor's dream because of the many challenging legal issues that necessarily arise if and whenever there is a major federal crime with lots of obvious (and not-so-obvious) victims who might make claims under the CVRA.

In this post on the night of the capture of Dzhokar Tsarnaev, I quickly flagged a few legal issues the CVRA might raise in his federal  prosecution.  But especially with new buzz about a possible plea deal to take the death penalty off the table for Tsarnaev following the appointment of federal defender Judy Clarke, I wanted to talk through some CVRA concerns a bit more fully.

First, consider the definition of who has rights under the CVRA: section (e) of 3771 states "the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense."  Tsarnaev has already been formally charged with the federal offense of using a weapon of mass destruction resulting in death and using an explosive device in the malicious destruction of property.  Even if we only focus on bodily harm and property harm, there were obviously hundreds of persons at the Boston Marathon finish line who were "directly and proximately harmed" (and severely harmed) by Tsarnaev's federal offenses.  All those sent to the hospital and so many others on the scene when the two bombs exploded clearly have statutory rights under the CVRA now (though I doubt many, if any, have lawyers (yet) working to help them know and understand their CVRA rights).

Moreover, psychological harm also surely "counts" under the CVRA. This means many thousands of persons in Boston (and perhaps tens of millions of persons throughout the US) could at least reasonably claim to have been "directly and proximately harmed" by the Boston bombings.  I wonder if any persons claiming psychological harm might at some point assert they have significant statutory rights under the CVRA now in the prosecution of Tsarnaev.

Second, consider some key statutory rights set forth in the CVRA: section (a) of 3771 states that a crime victim has, inter alia, a "right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing,..." and a "reasonable right to confer with the attorney for the Government in the case."  And, notably, section (c) states that officials "engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, [their CVRA] rights" and that the "prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to [their CVRA] rights.

Because plea negotiations are not conducted as part of "any public proceeding," the Boston bombing victims would not under the CVRA have a right to "be reasonably heard" during the negotiations.  But, of course, any court proceeding to formally enter any plea will be a public proceeding, which means every obvious (and not-so-obvious) victims here would have a right to urge a judge to accept (or reject) any plea deal arranged by the parties in this case.

Perhaps even more significantly right now, I would assert that a fair reading of the CVRA places a duty on DOJ officials to make "their best efforts" to confer with at least some (many?  most?  all?) of the Boston victims whenever there is serious consideration of any plea deal to take the death penalty off the table.  Prosecutors also would seem to have a duty under the CVRA to let the Boston bombing victims know that they can (and should?) seek help from an attorney when considering these matters.

Criticially, crime victims have never been thought to have a constitutional right to an appointed attorney, and the CVRA plainly does not create a statutory right to an attorney for crime victims.  Consequently, I fear that many (most?  all?) of the Boston bombing victims may ultimately get little professional help in securing the potential benefits of the important statutory rights set forth in the CVRA.  And maybe in a case in which a federal offense has arguably produced many millions of crime victims, perhaps we have to recognize that, for practical if not principled reasons, there may always be significant functional limits on the rights of even the most sympathetic of crime victims.

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"significant functional limits on the rights of even the most sympathetic of crime victims."
Nobody gittin nothin -- its the sequestration.

Posted by: ? | May 3, 2013 4:17:34 PM

Omitted victims:

Every residence of Watertown was entered by polite but firm FBI thugs, without warrant. This is a mass constitutional tort, and $billion is owed by the DOJ to these residents.

The shutdown cost everyone $hundreds if not $thousands in lost revenues, additional expense, or lost opportunity elsewhere. Everyone should send the federal government a bill itemizing their losses. Then sue the federal deadbeats and seize federal property in partial payment for this debt. Send heavily armed state troopers to any auction on foreclosure, to fulfill the judgment.

Posted by: Supremacy Claus | May 3, 2013 10:08:56 PM

The federal government could prosecute the punk face guy for the crime of Felony Murder whereby he ran over his muslim brother with a stolen vehicle, and killed him. The cause of death, whether by police bullet or car crash is immaterial, if the death was during a felony. This would be one conviction that means that the defendant, who is a relative of the victim, could be heard in court at sentencing. He could say that he has remorse in losing his brother but that his brother called upon him as a Muslim to engage in the felony no matter what the consequences. He should therefore beg for probation.

Posted by: liberty1st | May 4, 2013 11:59:44 PM

It all makes a nice parlor game, but in the event anyone actually care so be serious about it: We all know that the "victims" are those physically injured or killed by the bombing plus those physically injured or killed as a direct and proximate consequence of the bombing. The rest is just silliness.

Posted by: Bill Otis | May 6, 2013 1:19:33 PM

hi I am new to Federal charges, but is the public allowed to view public hearings, say when Dzhokhar Tsareuv is at court hearing? Also, the US Attorney for MA Ortiz said in her press conference, she spoke to many victims and family of the deceased, was she seeing how they were and what the punishment aught to be?

Posted by: leslie | Jun 28, 2013 10:24:16 PM

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