Prop. 9 would give crime victims a stronger voice

Rothfeld is a Times staff writer.

A quarter-century after the slaying of Marsalee Nicholas, a college student from Malibu, voters will consider an initiative launched in her name that would give a stronger voice to crime victims and their families, and impose harsher treatment on convicted killers.

Proposition 9 would alter the state Constitution to require that crime victims be notified and consulted on developments in their cases. It would give them first claim on any restitution to be collected from offenders, and it would force prosecutors to take their opinions into account.

The measure, known as Marsy’s Law and the Victims’ Bill of Rights of 2008, also would make the state criminal justice system tougher in ways that critics, such as Los Angeles County Dist. Atty. Steve Cooley, say could violate prisoners’ constitutional rights.

Ex-convicts accused of violating parole would lose their right to a lawyer provided by the state. Those serving possible life sentences could be denied parole for up to 15 years, triple the current maximum. And an unlimited number of victims would be able to testify at an inmate’s parole hearing and say whatever they want -- uninterrupted -- without having to answer questions from an inmate or the inmate’s lawyer.


“Victims just have no rights,” said Marcella Leach, 79, Marsy’s mother. “All anybody cares about is the rights of the criminals.”

Marsy Nicholas was 21 when she was shot in the head and killed by an ex-boyfriend while home from UC Santa Barbara for Thanksgiving in November 1983.

The Proposition 9 campaign has received $4.8 million from her older brother, billionaire Henry T. Nicholas III -- who is currently under federal indictment on fraud, conspiracy and drug charges.

Marsy’s mother, a proponent of the measure, co-founded Justice for Homicide Victims with her late husband, Robert, and with Ellen Dunne, whose daughter with author Dominick Dunne also was murdered.


Opponents say that Proposition 9’s provisions on notification and restitution duplicate a crime victims’ bill of rights that voters approved in 1982, and that they are designed to distract from the ballot measure’s true -- and less advertised -- purpose: to keep prisoners locked up longer.

In a system that now grants parole to about 1% of eligible prisoners, inmates would be denied a chance for release for up to 15 years at a time without “clear and convincing evidence” for a shorter period between hearings.

That could destroy any motivation inmates may have to improve themselves, said Mark Smith, who won his release in court in 2003 after serving 18 years for second-degree murder for a killing in Topanga Canyon.

Smith was suffering in prison from AIDS, dementia and cancer, and had been recommended for release based on his prison record by his sentencing judge and the state parole board. But Gov. Gray Davis blocked him from leaving.


“I really didn’t think I was going to get out -- I pretty much lost all hope,” said Smith, 53, of Sun Valley. “Once they’re denied for 15 years, they will lose hope. . . . There would probably be riots over it.”

Inmates can now be denied parole for one to five years, and some are rejected many times before winning release. Victims’ relatives, who often attend the hearings, say the inmates shouldn’t be able to have so many chances because it is painful for families to revisit the crime over and over again.

Marcella Leach said she had a heart attack at the first of four hearings for her daughter’s killer, Kerry Conley.

“There’s a lot of killers in prison today who waste precious taxpayer resources getting wasteful parole hearings when they have no chance of getting parole,” said Assemblyman Todd Spitzer (R-Orange), the initiative’s statewide chairman.


According to the nonpartisan state legislative analyst’s office, the measure could save tens of millions of dollars by reducing the number of parole hearings and ending the state’s practice of paying for lawyers for accused parole violators.

But the analyst said the proposition could cost the state hundreds of millions of dollars by restricting the state’s ability to release inmates early from overcrowded prisons, a plan adopted and then dropped by Gov. Arnold Schwarzenegger this year.

Cooley and his staff said the measure could interfere with prosecutions by making victims into independent parties to criminal cases with the ability, for instance, to challenge sentences and to demand a speedy trial, and to refuse to cooperate with a defense lawyer’s requests for information as part of the trial process. Cooley said provisions prohibiting inmates from questioning victims at parole hearings would likely be struck down in court.

In an interview, he called the proponents “very well-motivated people who suffered incredible tragedies in their life,” but he said “huge chunks” of their initiative are unconstitutional.


“We don’t like to have the public think they’re getting something when they’re not,” Cooley said. “We don’t want victims to think they’re getting some special right, and it may be unenforceable.”

The measure, if passed, probably would face litigation over its clauses stripping ex-convicts’ right to have state-funded lawyers in revocation hearings unless they are indigent, and increasing from 35 to 45 days the period they can be held in custody before revocation hearings. The state agreed to the current timeline and to provide lawyers in all cases as part of a court-ordered settlement of a federal lawsuit called Valdivia vs. Schwarzenegger.

Ernest Galvan, a San Francisco-based lawyer for inmates in that case, said he would go to court if the initiative passed to try to get that part of it invalidated. Galvan said that the initiative, a “personal project” of Henry Nicholas, is ill-conceived.

“I know a terrible thing happened to his family many years ago, and my heart goes out to him,” Galvan said. But he called it “costly, disruptive and bad for public safety . . . when we make law on the fact that somebody happens to be a billionaire.”


Marcella Leach acknowledges that her battle is indeed personal -- so much so that she can still describe in minute detail the night of her daughter’s murder and the days afterward, when she ran into Conley, temporarily released on bail, in a grocery store.

The death of Marsy’s killer in prison last year, a few months after his final parole hearing, was such a consolation that Leach spoke of it to comfort her husband as he lay dying in April.

“I said, ‘Well, one thing we accomplished is God took him,’ ” Leach said. “Somewhere about a week before Christmas. Best present I ever got.”





Proposition 9


Key provisions would:

* Increase from five to 15 years the maximum period for the state to deny parole to prisoners serving potential life terms.

* Allow unlimited numbers of victims’ relatives to testify uninterrupted at parole hearings without being questioned by inmates.

* Eliminate the right of accused parole violators to have state-paid lawyers; increase from 35 to 45 days the period they can be held in custody before a parole revocation proceeding.


* Place victims’ rights in the state Constitution. Grant victims the right to be notified and consulted in criminal cases; strengthen victims’ rights to receive restitution.

* Restrict state and local officials’ ability to release inmates early from prisons and jails.


Justice for Homicide Victims, Justice for Murdered Children, Crime Victims United, Assemblyman Todd Spitzer (R-Orange), National Organization for Murdered Children



California Teachers Assn., American Civil Liberties Union, California Public Defenders Assn., California State Assn. of Counties


Supporters have raised $5 million, including $4.8 million from Henry Nicholas III, the Broadcom co-founder now under federal indictment and brother of a murder victim. Opponents have raised $2 million for a combined effort to defeat this initiative and Proposition 6, another crime-related measure.


Source: Times reporting.