OPINION: California billionaire seeks unneeded changes to the Ohio constitution

California billionaire Henry Nicholas, who wants to add a crime victims’ bill of rights, known as Marsy’s Law in memory of his sister, to all state constitutions and ultimately the U.S. Constitution, has donated $8.5 million of his own money to support the campaign for Issue 1 in Ohio.

Vote ‘no’ on Issue 1. Ohio voters approved a Victims’ Rights amendment to the Ohio Constitution in 1994. Ohio now has a well developed body of law that seeks to treat crime victims fairly and respectfully. 

Marsalee “Marsy” Nicholas should not have been stalked and killed by her ex-boyfriend in California. And family members should never have had to encounter the killer in a grocery store just a week after her death, unaware that he had been released on bail.

But Ohio does not need to amend its constitution in Marsy’s name to fix problems the state doesn’t necessarily have. “Marsy’s Law is not a response to an Ohio problem,” writes Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association, in an editorial urging a no vote on Issue 1.

The Ohio State Bar Association, the Office of the Ohio Public Defender, the ACLU of Ohio, and the Ohio Association of Criminal Defense Lawyers have joined the Ohio Prosecuting Attorneys Association in opposing Issue 1.

Ohio already has a well developed body of law protecting victims. Since 1994, Ohio law has worked to treat crime victims fairly and respectfully. And groups that oppose the law, like the Ohio Prosecuting Attorneys Association, stand ready to work for improvements.

A constitutional amendment, without deliberate consideration of the issues specific to the state, raises strong possibilities of unintended consequences and makes it nearly impossible for the state legislature to fix such unforeseen problems.

Ohio Issue 1 is being pushed by an out-of-state group called Marsy’s Law for All, which was founded by Marsy’s brother, California billionaire Henry T. Nicholas, in 2009. Nicholas, who co-founded semiconductor company Broadcom Corp., aims to add protections for victims’ rights to all state constitutions and ultimately the U.S. Constitution.

Marsy’s Law for All has turned its sights on Ohio and backed the effort with more than $8.7 million. Henry Nicholas, who faced allegations of drug use and illicit sex (here and here), is the largest contributor to the campaign, donating $8.5 million. Marsy’s Law for Ohio spent $2.3 million to collect more than 300,000 signatures to get Issue 1 certified for the ballot.

According to the group’s filing with the Ohio Attorney General’s Office, Issue 1 would repeal the Ohio Victims’ Rights amendment to the Ohio Constitution, which was approved by 77.6 percent of voters in 1994.

That amendment added Section 10a to the constitution’s Bill of Rights, which provided crime victims with rights to (1) “fairness, dignity, and respect in the criminal justice process” and (2) “reasonable and appropriate notice, information, access, and protection and to a meaningful role in the criminal justice process.”

The 1994 amendment empowered the Ohio General Assembly to define what is reasonable and appropriate notice, information, access, protection, and role for crime victims. The General Assembly has adopted a series of laws to help crime victims. The law centralizes all legislation pertaining to crime victims in Chapter 2930 of the Ohio Revised Code, known as Victim’s Rights.

Chapter 2930, according to Tobin, obligates prosecutors to confer with victims to the extent practicable. It requires that victims receive notice of proceedings, have identification information protected, be notified of substantial delays in the case with an opportunity to object, and gives them the right to be present for portions of a trial conducted on the record, unless otherwise limited by the court.

Ohio law protects victims of all felony crimes and certain misdemeanor crimes of menacing, aggravated menacing, assault, domestic violence, drunk driving injury, intimidation, negligent homicide, sexual imposition, stalking, vehicular manslaughter, and vehicular homicide. The protections apply whether the crime was committed by an adult or juvenile.

Issue 1, by contrast, does not make a distinction among crimes the law would apply to. It puts a $5 check case on the same legal footing as a rape or murder case. Critics say these changes would overburden the courts and prosecutors and would divert limited resources away from programs and services for victims with the greatest needs.

Issue 1 also expands the definition of “victim” to include not only the victim of a criminal or delinquent act, but also a person “who is directly and proximately harmed by the commission of the offense or act.”

“This definition is too broad,” says Tobin. “Because the proposal requires notice to victims and grants them the right to be present at proceedings, the definition could require notice to family members, extended family members, or even corporations. This could create a scheduling quagmire for courts and will lead to conflicts with a defendant’s right to a speedy trial.”

Issue 1 would also grant the right to a victim “to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused,” except as authorized by section 10 of Article I of this constitution.

This provisions may violate the Sixth Amendment to the U.S. Constitution, which states: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor…”

In Wisconsin, where lawmakers are debating whether to incorporate Marsy’s law into the state constitution, this same provision is considered a serious defect in Marsy’s law.

In Montana, where voters incorporated Marsy’s law into the state constitution in 2016, groups–the Montana Association of Counties, Montana Association of Criminal Defense Lawyers, and the ACLU of Montana–have challenged the law.

And Lee’s Newspapers, which owns five newspapers in the Montana–including papers in Helena, Billings, and Missoula–has joined the challenge by filing an amicus brief arguing that the law limits state and federal freedom of the press rights.

In North Dakota, where the state constitution was amended in 2016 to incorporate Marsy’s law, some victims’ rights advocates opposed the initiative believing it worked against the interests of victims.

North Dakota attorneys also confront the problem with the Sixth Amendment. “This could prevent a defendant from adequately preparing for trial by not having access to victim’s testimony.  This may actually allow for abusers and criminals to avoid prosecution,”

In South Dakota, where in 2016 voters approved a constitutional amendment to include Marsy’s law, Mark Mickelson, a Republican lawmaker from Sioux Falls and the speaker of the house, plans to bring a proposal to repeal the amendment and replace it with appropriate state laws.

“Our constitution is sacred and we’ve seen the unintended consequences that came with the Marsy’s Law amendment,” Mickelson said.

The South Dakota representative is also gathering signatures for a ballot measure to block out-of-state funding for ballot initiatives.

Ohio Attorney General Mike DeWine is outspoken in favor of Issue 1. The Republican candidate for governor co-chairs the Issue 1 support campaign. DeWine has been joined by several county prosecutors in support of the issue including Ron O’Brien in Franklin County, Sherri Bevan Walsh in Summit County, Joe Deters in Hamilton County, and Michael O’Malley in Cuyahoga County.

No committee has been organized to oppose this initiative by out-of-state money.

OSBA, which calls the initiative “well intentioned, says it “will undoubtedly lead to unintended consequences, including increased costs and potential delays in the criminal justice system.”

The ACLU has concerns about the effect of Issue 1 on due process and fair trial, but it is most concerned about conflicts with the Sixth Amendment: “Issue 1 would prevent people accused of crimes from obtaining evidence that may prove them innocent if that evidence is from or about victims, making it incredibly difficult to mount a true defense.”

Multiple studies show that violent crime is on the decline and has been for decades. Yet our everyday world is so dominated by fear that we feel vulnerable, as if we might be the next crime victim. The reflexive and politically expedient response is to support any legislation, despite its inherent flaws, that would ostensibly protect victims of crimes.

Issue 1–Marsy’s law–is a bad idea for Ohio. C4AD urges readers to resist the emotional appeal of Issue 1 and ignore the unfair label of “callous” that is applied to opponents of the amendment. Instead vote ‘no’ on Issue 1.

by Mike Brown, mbrown.c4ad@gmail.comhttps://www.facebook.com/c4adnow/

According to the Ohio Bar Association, in its publication, The Law and You, it is already the law that:

  • Victims in any felony case, and in misdemeanor cases involving actual or threatened violence, have the right to be informed about the process and the right to be heard.
  • Law enforcement officers must give victims certain information when investigating a crime, including notice of any arrest in the case.
  • A prosecutor must provide notice of proceedings, convictions and appeals in a case if the victim asks.
  • A victim has the right to be present when the defendant is present at any proceeding that is on the record.
  • Courts must consider victims’ objections to delays and allow them to make victim-impact
    statements at sentencing.
  • The court must consider the impact of the crime on the victim in choosing an appropriate
    Sentence.
  • Levels of compensation courts may provide to victims of crime have been increased.
  • Upon request by a victim, prisons and jails must notify the victim when the victim’s assailant is released.
  • The court must make a reasonable effort to minimize contact between victims and defendants. When practical, separate court
    waiting rooms must be made available so victims do not have to be near the accused.
  • Victims of sexual offenders are notified when the defendants are released from prison. All sex offenders must register with the county sheriff in the county in which they reside.
  • Sexual offenders who are declared sexual predators and/or repeat sexual offenders must register with the county sheriff for at least 10 years and, in the case of sexual predators and some repeat sexual offenders, neighbors, schools and daycare centers are notified by the sheriff of the county in which the offenders live. In larger cities, the location of sexual predators is on the Web sites of county sheriffs.
  • The court may grant a motion to prevent disclosure of a victim’s address, place of employment, or similar information when the victim fears violence or intimidation by the defendant.
  • Employers may not discipline victims for the reasonable exercise of these rights.
  • In most cases, victims are entitled to the prompt return of their property.

 

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