County prosecutors preparing for new law

A new law added to the Montana Constitution last November is nearing its implementation date, and with it, prosecutors are anticipating a number of new challenges and expenses for the state.

Scheduled to go into effect July 1, Marsy’s Law sets forth a bill of rights for victims of crimes. Those 17 rights include a victim’s right to be notified of certain court proceedings, to be notified when the accused is released or escapes from custody, to refuse an interview or deposition and to prevent the disclosure of victim information.

The law was originally implemented in California in 2008 after Marsalee (Marsy) Nicholas was stalked and murdered by her ex-boyfriend. A week after her death, Marsy’s accused murderer ran into her brother and mother at a grocery store. They had no idea he had been released on bail.

Since then, Marsy’s brother, Henry Nicholas, has advocated for constitutional rights for crime victims.

To date, seven states, including Montana, have implemented some version of Marsy’s Law.

Though many county attorneys state that most of the precautions and actions outlined in the law were taken prior to its adoption, most admit some victims still fall through the cracks.

“I think we’ve done a pretty good job as it is, but there are always ways you should do it better,” said Lake County Attorney Steve Eschenbacher.

Chuck Denowh, the director of Marsy’s Law for Montana, said last October while advocating for the law that most prosecutors do keep crime victims informed in cases right now, but argued that sometimes, especially with plea deals, proceedings can move very quickly.

In the case of plea deals, Denowh said, sometimes victims go to bed thinking their abuser is facing felony charges but wake up the next morning to find out that a plea bargain reduced the charge to a misdemeanor and that the violator is now out walking the streets.

As the law stands now, victims of violent crimes are already notified of court dates and of their abusers’ custodial status.

Marsy’s Law will extend those and other rights to victims of all crimes, including misdemeanors, a change that some prosecutors say will create a much larger workload.

Eschenbacher said his office is looking at having to hire at least one new staff member, or victim coordinator, to help tackle the new cases.

Based on the new law, victim coordinators will be obligated to track down victims of every crime brought before the court, from theft to fender benders, and ask whether they wish to be notified of everything that goes on in his or her case.

This process can take time if a victim fails to leave viable contact information and could potentially elongate certain court proceedings, forcing the court to wait while the victim is notified of any changes.

Eschenbacher said this could especially hinder bail hearings, where the victim has the right to be notified but the defendant has the right to bail.

In the case that prosecutors are unable to locate a victim in time and the court is forced to proceed without them, Eschenbacher said another issue could arise — the potential for victims to pursue lawsuits for failure to comply.

Another potential issue with the law is the right it gives victims to opt out of making a statement or participating in interviews.

Lincoln County Attorney Bernard Cassidy said this amendment could potentially conflict with the Sixth Amendment of the U.S. Constitution that gives the accused the right to confront his or her accuser.

“If at some point the victim’s rights clash with the defendant’s rights, the court will have to decide which right prevails,” Cassidy said.

Prosecutors are also considering the cost of implementing the law. Adding even one part-time victim coordinator position, according to Eschenbacher, will cost Lake County around $50,000 a year.

Ed Corrigan, county attorney for Flathead County, said he too is considering adding another victim’s advocate position as a result of the law but could not comment on how much he expected the position to cost the county.

“It does complicate our operations, but we’ll find a way to deal with it,” Corrigan said.

Corrigan described his office’s approach to the new law as a “trial and error procedure.”

In Gallatin County, county attorney Marty Lambert said he is requesting $179,000 for three new positions to cover the large new caseload.

According to Lambert, his office struggled to manage the workload and keep up with victims before Marsy’s Law was approved by voters.

Lambert helped co-author an opposition statement while the law was still under debate, arguing against its necessity and stating that he did not believe voters were fully aware of the implications attached to the law.

“I don’t think there was much discussion or awareness by voters of what this meant, financially,” Lambert said. According to Lambert, the law will constitute an influx of hundreds of new cases.

“We’ll do our best to implement this,” Lambert said.

“These additional people in my office are absolutely necessary to make this happen,” he added.

The Montana Department of Justice announced Tuesday the creation of a new website to assist both local law enforcement and county prosecutors with Marsy’s Law, as well as provide victims and victim advocates with information and resources about the law.

To see a full list of victims’ rights outlined in Marsy’s Law, visit https://dojmt.gov/marsys-law/

Mary Cloud Taylor can be reached at 758-4459 or mtaylor@dailyinterlake.com.