By FRANK MICKADEITCOLUMNIST / THE ORANGE COUNTY REGISTER
In a case working its way through Superior Court, the current supervisorial and probable future D.A. candidate is trying to cement rights for crime victims that he asserts were legally granted when voters approved Marsy’s Law in 2008. Specifically, Spitzer is trying to force prosecutors to turn over to crime victims at the outset of a case the police reports and other evidence that typically doesn’t come out until trial, if ever.
Not only is what Spitzer doing an interesting legal issue, but depending on how D.A. Tony Rackauckas responds, it could become a political one.
Among the rights Marsy’s Law gave victims is to receive notice about upcoming hearings, to be heard at a hearing at which their rights are an issue, and to restitution.
The underlying case in which Spitzer is testing the limits of these rights involves charges of unlawful sex against former Orange High School teacher Scott Adrian Peterson, who was arrested in 2010. Peterson, then 48, allegedly had a sexual relationship with a then-17-year-old female student. Peterson has a private attorney. The D.A.’s Office legally represents the people of the state, not the victim. But a victim can hire her own attorney to enforce Marsy’s Law.
In this case, there are legally two victims: the girl, Jane Doe, and, because she was a minor, the girl’s mother, call her Mrs. Doe. Jane and Mrs. Doe are at odds. Jane doesn’t want to see Peterson prosecuted. Mrs. Doe does. So they each have an attorney. Jane is represented by veteran criminal defense attorney Ron Brower. Mrs. Doe is represented by Spitzer, who authored Marsy’s Law.
Spitzer said he asked the prosecutor for police reports and other evidence in open court and was denied. He has now filed a motion asking Judge Gerald G. Johnston to order the D.A. to turn over the documents. A hearing is Dec. 16. He also has filed with the D.A.’s Office a request for the documents under the state Public Records Act.
Susan Schroeder, T-Rack’s chief of staff, said the office is still researching the Spitzer request and doesn’t have a comment at this time.
Why does a crime victim (or her lawyer) need access to evidence before the trial? Spitzer argues that it allows the victim to participate knowledgeably. For example, he argues in his brief, knowing there are false allegations being made against the victim would allow the victim to confer with the prosecutor before the prosecutor becomes prejudiced and dismisses the value of the case.
Victims’ lawyers might also find elements prosecutors overlooked. Spitzer said that in a recent assault case in L.A. County, he saw in the police report that both of the victim’s arms had been broken. The prosecutor initially charged simple assault. Spitzer used the information he found in the police report to convince the prosecutor to file assault “with great bodily injury,” which more than doubled the bail and could add years to a prison sentence.
“How can you as the (victim’s) lawyer even determine what the issues are if you don’t have all the facts?” Spitzer says. “How can I do her justice if I can’t analyze the evidence?”
Why would prosecutors oppose it? One, it allows victims and their lawyers greater ability to second-guess prosecutorial decisions. Two, there’s a fear that once the material gets into victims’ hands its confidentiality is compromised, which could impact the case.
Given that T-Rack fired Spitzer and that Spitzer may one day run against him or a hand-picked successor, the politics in play here can’t be ignored.
If T-Rack agrees to turn over the evidence without a court order and establishes a policy to do so in the future, Spitzer gets a nice feather in his cap and T-Rack comes out looking OK. Spitzer notes that in L.A. County, D.A. Steve Cooley recently agreed to give him evidence, and he expects T-Rack to do the same. If T-Rack fights the request, however, Spitzer is sure to use it to try and paint the D.A. as favoring prosecutorial autonomy over victim’s rights.
Mickadeit writes Mon.-Fri. Contact him at 714-796-4994 or firstname.lastname@example.org