Defining the Rights of Victims
Rape Case Frames Contentious Supreme Court Debate
By Lynne Tuohy, Courant Staff Writer
Originally published in The Hartford Courant, November 28, 2001
A judge's decision to allow a convicted rapist his freedom while awaiting appeal has led to a momentous tug-of-war over the rights of criminal defendants and their victims.
The battle began playing out Tuesday before all seven justices of the state Supreme Court.
Does Jennifer F., rapist James McCahill's victim, have the right to challenge a New Britain judge's decision to grant her attacker his release on an appeal bond? And if so, does that open the door to her and other crime victims' becoming third parties to the criminal process?
The case affects thousands—including all of the state's defense lawyers, all the victims of violent crimes and their advocates—represented in briefs filed with the court. It pits the age-old "common law" power of judges to decide matters of bail and liberty against the emerging constitutional rights of victims in Connecticut to have a voice in the criminal proceedings that stem from their pain.
Also at issue is whether the Office of the Victim Advocate has legal standing to file challenges on a victim's behalf.
"We believe this landmark case will balance the scales of justice," said Gail Burns-Smith, director of Connecticut Sexual Assault Crisis Services, one of the many victim-advocates' groups that filed a friend-of-the-court brief in the case.
But the Connecticut Criminal Defense Lawyers Association, the Office of the Chief Public Defender and the Connecticut Civil Liberties Union believe that the case has the potential to upset the delicate balance of state interests and defendants' rights.
"The victims' rights amendment gave victims the right to be apprised of proceedings, but did not give them party status, and that's what they're seeking," attorney Hope Seeley, president of the defense lawyers' association, said Tuesday. "It's the state of Connecticut that brings the charges, not victims. It will be very dangerous to have victims second-guessing everything done by the prosecutors."
Connecticut voters in 1996 passed the victims' rights amendment to the state constitution, and empowered the legislature to pass the laws needed to enforce its provisions. One of those laws, passed last year, says that no appeal bond should be set for those convicted of crimes involving the use or attempted use of physical violence.
McCahill was found guilty by a jury May 23 of first-degree sexual assault and first-degree burglary. Superior Court Judge Bernard D. Gaffney sentenced him to serve six years in prison, but also set a $250,000 appeal bond, which McCahill posted. Gaffney said that the statute mandating no appeal bond unconstitutionally intruded on the power of judges to set bail, in violation of the separation of powers doctrine of the constitution.
State prosecutors appealed the bond issue. Jennifer F.—who attended Tuesday's hearing—and state Victim Advocate James Papillo filed a "writ of error" challenging McCahill's release on bond. They claim that it violated the constitutional provision of the victims' rights amendment that gives the victim the right "to be reasonably protected from the accused throughout the criminal justice process."
This is the first time that the state's highest court has reviewed the constitutional issues surrounding the victims' rights amendment and its enabling legislation, some of which appears to be in conflict with the language of the amendment. The last sentence of the victims' rights amendment reads: "Nothing in this subsection or in any law enacted pursuant to this subsection shall be construed as creating a basis for vacating a conviction or ground for appellate relief in any criminal case." It's a sentence that Justice Flemming L. Norcott Jr. described as "a paradigm of non-clarity."
In addition to deciding the constitutionality of the statute that strips the trial judge of all discretion in the area of appeal bonds, the justices have been asked to define what role a victim, and victim advocate, should play in the criminal proceeding.
"The real issue is the victim's standing and the victims' rights amendment," Papillo said after Tuesday's hearing. "Is it worth more than the paper it's written on?"
The justices made it clear through their questions to the lawyers that they had concerns about both the broad language in the statute and the specter of victims' becoming parties to the process.
"[The victim] doesn't have the trump card over what the trial court does," Justice David M. Borden observed. "She has the right to have her point of view considered."
Daniel Krisch, arguing for the victim, countered, "I think the trump card, in this case, is held by the legislature."
Although prosecutors appealed the setting of an appeal bond, they opposed giving victims or the victim advocate the authority to challenge judicial rulings. In that respect, the prosecution found itself aligned with the defense lawyers, and seated at the same table Tuesday with McCahill's attorney, Jon Schoenhorn. In his brief, Schoenhorn described Papillo's role in the case as "outrageous."
"It constitutes nothing less than an unauthorized, wholesale seizure of power by an individual who possesses none," Schoenhorn wrote.
Jennifer F. said Tuesday that the release of McCahill on an appeal bond "was a slap in the face."
"He's convicted and he's sitting home," Jennifer F. said. "What is this telling victims? … I feel, as a victim, that I'm imposing on the system. I shouldn't feel like that. I should not feel that way at all."
"This may not work out for me, but I can change it for other people," she said of her resolve to see it through. She is married and pregnant, due to deliver a girl in January.
"I'm telling you, I'm not going to have her go through this if, heaven forbid, something like this ever happens to her."
