Hearing Represents Important Moment in Victims Rights Movement

A lawyer acquaintance tells a story of how the grieving husband of a murder victim banged on a courtroom chair during the accused killer’s trial and made odd vocal sounds calling attention to the fact that he was distraught.

The lawyer representing the alleged murderer felt that the display of emotion wasn’t fair to his client. The judge agreed and tossed the husband out of the courtroom.

This is an extreme example of what some defense attorneys call “victims stuff.” While excessive, the incident helps explain why the presence of the survivors of Nicole Brown Simpson and Ronald Lyle Goldman is so troubling to the defense. Their presence in court will remind the jury that the dead were human beings, a young man and woman survived by people who loved them.

Today, the issue of the survivors’ rights to attend the trial is scheduled to be debated before Judge Lance A. Ito. At issue is defense attorney Johnnie L. Cochran Jr.’s objection to family members of Nicole Simpson attending the trial.

Cochran said they should be barred because they are potential witnesses. That’s an important point. But the issue is much broader than that. For the hearing before Judge Ito will be an important moment in a powerful political force--the victims rights movement.

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In 1986, pressure from this movement led to the passage of the California Crime Trial Attendance Act. Victims, as defined by the law, include not only the actual victim but also a limited number of family members.

The first paragraph of the law sets down most clearly the issues that Judge Ito must decide:

“The victim shall be entitled to be present and seated at the trial. If the court finds the presence of the victim would pose a substantial risk of influencing or affecting the content of any testimony, the court shall exclude the victim from the trial entirely or in part.”

Prof. Rory Little of UC’s Hastings College of the Law in San Francisco, a former federal prosecutor, said the act was passed to make sure victims and their survivors got the same consideration as defendants.

“The defendant has the right to watch the case unfold against him and today the victim occupies the same place on the scale of justice, and that is our state law,” Little said. “Watching that trial unfold is every bit as important to them as it is to the defendant.”

This is not a revolutionary idea. In his book “With Justice for Some,” Prof. George Fletcher of Columbia Law School noted that in European trials, “the injured party may join the criminal proceedings as a participant with rights of his own.”

The German Code of Criminal Procedure permits the victim to jump into the trial as a private prosecutor. “His purpose is to . . . pursue his civil remedy for damages against the defendant and to further the criminal prosecution,” Fletcher wrote. “He can call witnesses and, like other participants in the trial, formulate questions for the judge to ask the witness.”

Although the European system is far different than ours, its recognition of victims was taken up by our victims rights movement when it began in the late ‘70s and early ‘80s.

Local groups of victims, relatives and prosecutors banded together to push through ballot measures making major changes in the criminal law. Victims or their relatives were assured they would be notified as the defendant’s case moved through the courts and prison hearings. Victims and their relatives were a powerful part of the coalition supporting the 1994 “three strikes and you’re out” initiative.

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But what about Cochran’s specific objection. He fears the presence of potential witnesses among Nicole Brown Simpson’s survivors.

The Brown family can testify about the relationship between Nicole and Simpson. This could bolster the district attorney’s contention that Simpson murdered his ex-wife in the climatic act of years of his violence against her.

What if the prosecution calls an expert on the battered-women syndrome and the Brown family listened. Cochran would be justified in suspecting that the family could tailor its testimony to fit the symptoms described by the expert.

That is why witnesses traditionally have been excluded until it’s time for them to testify. Prof. Little of Hastings Law School said, “If you have three cops testifying about an arrest, you don’t want the last witness in line to shape his testimony according to what the two previous witnesses have said.”

But the California Crime Victims Trial Attendance Act changed that.

In the case of murder trials, it specifically said two immediate family members who are potential witnesses can attend the sessions.

The defense can modify this provision. It can insist that victim witnesses testify at the beginning of the trial. This would prevent their testimony from being influenced by later witnesses. And the judge can toss the victim out, either temporarily or for the length of the trial.

Whatever Ito’s decision, it will be a landmark in the history of the victims rights movement.