Victims’ rights important — but so are rights of the accused

Most of the time, there is nothing we as a society can do to repair the harm criminals do to their victims.

Judges can order restitution be made, but that frequently doesn’t happen. And in the worst offenses — rape and murder come to mind — the harm cannot be undone.

What we can do is punish the criminals and, sometimes, put them in prison to keep them from committing new offenses, at least for a time. We also can protect their victims and their families from being targeted again by the same criminals.

Sometimes, we don’t do a very good job of that. A proposal on the ballot for the Ohio election today is aimed at improving. It is Issue 1, being referred to as Marsy’s Law.

The name comes from a young California woman who was murdered by her ex-boyfriend in 1983. Before he went to trial, he was released for a time on bail. While out, he went to a grocery store and confronted his victim’s mother — who was not notified the man had been released on bail.

A nationwide initiative is aimed at changing laws in all the states to avoid similar situations, and worse.

If Ohio voters approve Issue 1 today, they will provide a variety of guarantees for crime victims and their families. In essence, they amount to the right to be notified anytime something significant happens in a defendant’s or convicted criminal’s case, and to be involved to some extent in prosecuting the wrongdoer.

But there is a problem.

A section of Issue 1 stipulates victims of crimes will have the right to “refuse an interview, deposition or other discovery request made by the accused or any person acting on behalf of the accused,” except in situations covered by section 10, Article I of the state constitution.

That section guarantees that people accused of crimes can confront their accusers and be required to testify or give depositions on evidence in the cases.

It does not cover discovery requests. Now, it gets complicated, but the discovery process in the lead-up to a trial allows defense attorneys to obtain information that may help their clients.

Tim Young, a public defender who wrote the official argument against Issue 1, believes it would give victims “the right to refuse to turn over potential evidence. …”

Keeping a criminal from intimidating or otherwise harming a victim is one thing. Allowing someone who has accused a person of a crime to refuse to turn over evidence that might acquit the defendant is quite another.

For very good reasons, our American system of justice is based on ensuring that the innocent are not convicted of crimes.

We wonder sometimes why criminals benefit from so many “loopholes.” They seem to get many breaks.

But being entitled to obtain proof of innocence is not a loophole. It’s a right.

Issue 1 may well be in violation of the U.S. Constitution. If so, one would expect it to be overturned in a federal appeals court.

If Issue 1 is adopted by voters, and if that part of the victims’ rights rules is appealed, it should be ruled unconstitutional. Should that happen, a provision of Issue 1 stipulates that its other requirements would remain in place.

“Victims’ rights” has a nice sound to it. But so does “rights of the accused.”

Surely we can find a way to balance the two concepts.

Mike Myer is executive editor of The Intelligencer and Wheeling News Register.

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