Amending the PA constitution via Marsy’s Law on 2019 ballot

[icp4life162005]

That group smirk does look well rehearsed.

Theres a lot to be learned for most about involuntary reactions and facial cues...
Especially micro-expressions.

Are you even aware of the face you are making right now?

Whether you realized it or not, even if stoic, your micro facial expressions will be vastly different while reading this based on various factors. Such as, whether you know the information, if your intrigued, or even whether or not you view my posts in a positive or negative light.


The old saying of "Dont shoot till you can see the whotes of their eyes" can take on a whole new meaning when looked at from a view askew.

[buckengr]

Your question is amply covered by the miraculous word "allegedly".

This makes sense in the case you describe: sometimes it would seem beyond doubt that someone committed a crime based on irrefutable facts (i.e. strict liability) regardless of a conviction, and in that case it's fair to say the person harmed is a crime victim.

I guess I am still thinking their could be some cases where even the existence of a crime cannot be definitively proven until a trial has been decided.

Note: I'm not trying to get into a debate and I am certainly not trying to purport to know the right answer here, but I'm still uncertain about how this technically works.

Perhaps the answer is simple and it all falls under the catch all of "allegedly", as you suggest. But if you would allow me to construct what might be a bit of a contrived example for sake of discussion:

Suppose a person caused a fire which burned down a building. Suppose the person knows that the actions they took resulted in the fire and they stipulate to these facts and agree with and even admit to the fire investigators that their actions did indeed cause the fire. Suppose a prosecutor, for whatever reason, decides to charge this person with arson.

At this point, the person would technically be considered an "alleged" arsonist, based on the existence of a formal indictment against them, even if there was no actual evidence that the fire was set intentionally. It is possible that the fire was in fact completely accidental, and thus not a crime at all, despite the fact that it was caused by the person accused of arson.

In this case, I would argue that the owner of the property burned down should not be considered a crime victim until a guilty verdict is rendered. I suppose "victim of an alleged crime" might be valid, and simply "victim" would certainly seem appropriate, but until all the elements of the crime are proven (e.g. intent, which would be necessary in the case of arson), the existence of a crime has not been established.

In the end, it is all just semantics... until it isn't.

Oh, and thanks for your reply!

[alpacaheat]

My wife and I were discussing last night again and I think I summed this law up perfectly: it's the Kavanaugh treatment for every man.

I hope the ACLU succeeds in removing it from the ballot and if not, that enough people understand what it's about. Many women with sons and husbands will get it...and aren't buying into the way feminism treats the men and boys in their life. I just hope it's enough, more than the woman who will line up to support a woman just because she's another woman. We have too many of those in society...evidenced by how many votes Hillary got.

[Bang]

This makes sense in the case you describe: sometimes it would seem beyond doubt that someone committed a crime based on irrefutable facts (i.e. strict liability) regardless of a conviction, and in that case it's fair to say the person harmed is a crime victim.

I guess I am still thinking their could be some cases where even the existence of a crime cannot be definitively proven until a trial has been decided.

Note: I'm not trying to get into a debate and I am certainly not trying to purport to know the right answer here, but I'm still uncertain about how this technically works.

Perhaps the answer is simple and it all falls under the catch all of "allegedly", as you suggest. But if you would allow me to construct what might be a bit of a contrived example for sake of discussion:

Suppose a person caused a fire which burned down a building. Suppose the person knows that the actions they took resulted in the fire and they stipulate to these facts and agree with and even admit to the fire investigators that their actions did indeed cause the fire. Suppose a prosecutor, for whatever reason, decides to charge this person with arson.

At this point, the person would technically be considered an "alleged" arsonist, based on the existence of a formal indictment against them, even if there was no actual evidence that the fire was set intentionally. It is possible that the fire was in fact completely accidental, and thus not a crime at all, despite the fact that it was caused by the person accused of arson.

In this case, I would argue that the owner of the property burned down should not be considered a crime victim until a guilty verdict is rendered. I suppose "victim of an alleged crime" might be valid, and simply "victim" would certainly seem appropriate, but until all the elements of the crime are proven (e.g. intent, which would be necessary in the case of arson), the existence of a crime has not been established.

In the end, it is all just semantics... until it isn't.

Oh, and thanks for your reply!

An indictment is achieved by the presentation of evidence, so "no actual evidence" is out. The evidence consists of more than two facts: a fire occurred, the indicted person admitted causing it. Not described or considered is the fire investigator's report would reflect that no other reason for the fire was found (a third fact in evidence).

[GeneCC]

On the 2019 election ballot pa voters will be voting whether or not to amend the PA constitution with Marsy’s Law via yes no vote.
Marsy’s law amendment will address victim rights. Here is the description of it.


https://ballotpedia.org/Pennsylvania...endment_(2019)

Although the law sounds good for victims of crime, I don’t like the repeated use of the word”reasonable” . Will the second last bullet statement apply to firearms collected as evidence ( such as used in self defense or recovered as stolen)? Also the ninth statement ; what is reasonable protection? Are victims now going to be demanding secret service like protection ?

Also bear in mind that if they can amendment the PA state constitution with this; it is evident that the part of the PA constitution that reads ” The right of the citizens to bear arms in defense of themselves and the State shall not be questioned ” , can in fact be questioned.

My concern is if we are no longer allowed the right to face our accuser.

This requirement has restricted the use of Red Light cams.

I suspect that we can also demand a Trial before a Red Flag action.

[alpacaheat]

I did not know until the event was starting (saw on morning news) but this morning at 8 a.m. at the York County Courthouse was a public meeting on Marsy's Red Flag Law.

I would have loved to share some words.

[alpacaheat]

Opponents
ACLU of Pennsylvania[24]
League of Women Voters of Pennsylvania[25]
Pennsylvania Association of Criminal Defense Lawyers[26]

Arguments
Andy Hoover, communications director for the ACLU of Pennsylvania, said, "Contrast these [defendants’ rights] with victims’ rights, which arise out of a dispute between two private people. One person’s rights against another person are fundamentally different than a person’s rights against the awesome power of the government. This is why our Constitution, which lays out the restrictions on government power, includes defendants’ rights and why victims’ rights are primarily contained in statute."[27]

The Pennsylvania Association of Criminal Defense Lawyers (PACDL) filed a statement with the state Senate Judiciary Committee opposing Marsy's Law. An excerpt from the statement said, "This attempt at balancing the rights of the accused and the victim, especially in the face of the government’s vast resources and prosecutorial power, runs contrary to the reason why the Bill of Rights was enshrined in the Constitution – namely, to protect the accused, particularly those who are marginalized and unpopular, from government overreach. The state provides constitutional rights to the accused in criminal proceedings because the state is attempting to deprive the accused – not the victim – of life, liberty, and property."[28]

Bradley Winnick, president of PACDL and chief public defender for Dauphin County, Pennsylvania, said, "You have an alleged victim now having a right essentially to a speedy trial. A 230-year-old due process right is being trampled on by someone who has done nothing but make an allegation."[29]

[SigForLife]

Why you should vote NO to Marsy's law - https://blog.princelaw.com/2019/10/2...76-in-november. Also, you may find this article interesting regarding the guy who started the Marsy's Law initiative. Apparently, he believes he's above the law https://www.nevadacurrent.com/2019/0...rompts-outrage

[alpacaheat]

Came to post that Prince Law article as well...

https://blog.princelaw.com/2019/10/2...6-in-november/


WHY YOU SHOULD VOTE “NO” ON THE PROPOSED PA CONSTITUTIONAL AMENDMENT – MARSY’S LAW (HB 276) – IN NOVEMBER
Posted on October 23, 2019 by Dillon Harris


This November when you go to the polls or if you’ve requested an absentee ballot, you may see the following question:

Shall the Pennsylvania Constitution be amended to grant certain rights to crime victims, including to be treated with fairness, respect and dignity; considering their safety in bail proceedings; timely notice and opportunity to take part in public proceedings; reasonable protection from the accused; right to refuse discovery requests made by the accused; restitution and return of property; proceedings free from delay; and to be informed of these rights, so they can enforce them?

It sounds like voting yes is the decent thing to do. I mean, what kind of person wouldn’t want crime victims to be treated with fairness, respect, and dignity? Certainly not Pennsylvanians, because the law in this Commonwealth requires victims of crime to be treated with dignity, respect, courtesy, and sensitivity since 2007 when the General Assembly passed the Crime Victims Act. See, 18 P.S. § 11.201. So why amend the constitution? Why risk the inability to undo it, or require another statewide ballot initiative when it goes horribly awry, like it did within two years in South Dakota?

The Push For Marsy’s Law

Before addressing the constitutional issues with Marsy’s law, it is important for individuals to know that Marsy’s law was first offered and originally enacted in 2008 in California. For some of our readers, that should tell you everything you need to know about the proposal.

Regardless, it is important for everyone to be aware of the financial backing (i.e. Bloomberg money) pushing this proposal in Pennsylvania. As reflected in their September 24, 2019 filing with the Pennsylvania Department of State, they received $3,600,000.00 in cash donations and $2,400,000.00 in in-kind services for a total of $6,000,000.00. That’s right, six million dollars and between December 11, 2017 and March 31, 2019, they spent $848,960 on lobbying. Let that all sink in for a minute…





PA Constitutional Issues With How Marsy’s Law Was Proposed

HB 276, sponsored by Representative Sheryl Delozier (R), otherwise known as Marsy’s law, presents a panoply of constitutional problems, beginning with the way the ballot question was proposed and is being presented.

Article XI, § 1 of the Pennsylvania Constitution requires that the “proposed amendment or amendments shall be submitted to the qualified electors of the State” and that “[w]hen two or more amendments shall be submitted, they shall be voted on separately.” The question above does not meet either of those requirements. First, in the interest of complying with the Pennsylvania Election Code 25 P.S. § 3010(b), the question does not exceed 75 words. This brevity causes several of the new rights that would be created and their effects to be shortened or omitted from the ballot question. For reference, the question is 73 words, while the full amendment is nearly 500 words. The amendment would create fifteen new constitutional rights, where the ballot question only enumerates eight in brief form. The same circumstances cause the question to run afoul of the Pennsylvania Supreme Court’s requirement that the form of a ballot question “fairly, accurately and clearly apprize the voter of the question or issue to be voted on.” Stander v. Kelley, 433 Pa. 406, 418 (1969). Therefore, the ballot question fails to submit the proposed amendment to the qualified electors of the state, fails to allow them to vote on each amendment separately, and fails to meet the Pennsylvania Supreme Court’s fair, accurate, and clear apprisal standard.

The Unconstitutionality of Marsy’s Law Under the US and PA Constitutions

Once beyond the constitutional violations of the procedural way the amendment is being presented, we come to the ways the substance of the amendment will violate the Pennsylvania and United States Constitutions, if passed.

Who would be considered a victim of crime? If the proposed amendment passes, the term “victim” will include “any person against whom the criminal offense or delinquent act is committed or who is directly harmed by the commission of the offense or act.” Art. I, § 9.1(c)(proposed). However, the term “victim” will not include “the accused or a person whom the court finds would not act in the best interests of a deceased, incompetent, minor, or incapacitated victim.” The first thing to notice about this definition is that it applies to any criminal offense or delinquent act, even summary and misdemeanor offenses like disorderly conduct, vandalism or trespassing. The second thing to notice is that a crime is assumed to have been committed, someone is assumed to be the victim, and that the accused (i.e. defendant) is assumed to have committed the offense against the victim. Since the definition explicitly excludes the accused as someone who can be a victim, those assumptions are basically locked in for the duration of the case. Nothing like being guilty, until proven innocent….

In a criminal proceeding, the United States Constitution and the Pennsylvania Constitution each operate to protect the criminally accused from the immense power of the government, because the accused are at risk of losing liberty, property, and even life, and, most importantly, they are innocent until proven guilty. See, Coffin v. United
States, 156 U.S. 432 (1895)(holding that a criminal defendant is innocent until proven guilty). Among other constitutional rights, the accused has the right to confront the witnesses against him (U.S. Const. amend. XI), the right to due process of law (U.S. Const. amend. XIV), the right to a speedy trial (U.S. Cons. Amend. VI), the right to present a complete defense, and have the government disclose any exculpatory evidence it is aware of or possesses. Brady v. Maryland, 373 U.S. 83, 87 (1963). But under this amendment, where a victim would have competing rights, the limited protection the accused has against the awesome power of the government is further eroded.

As a victim would have the right to be heard in nearly any proceeding, it would follow then that a victim would have the right to request continuance or rescheduling of those hearings so that they may be heard, infringing on the accused’s right to a speedy trial. A victim would have the right to refuse a discovery request, inhibiting the accused’s right to confront the witnesses against him, present his best defense – especially if the victim is the only witness – or even preclude access to exculpatory (i.e. otherwise exonerating) evidence that a putative victim may hold. Consider an example; in 2006, three members of the Duke University lacrosse team were accused of violently raping a stripper. Over a year later, all of the charges were dropped and the players formally cleared of any wrongdoing in what turned out to be a case where a “victim” repeatedly made false allegations and a now-disbarred prosecutor concealed exculpatory evidence. One such piece of exculpatory evidence was the lack of DNA evidence connecting the players to the accuser, and the presence of DNA evidence disproving the accuser’s claim of the events. The prosecutor withheld the evidence, an action that contributed to his later disbarment, but an action that may be encouraged, or even required, if a “victim” chooses to exercise their right to refuse a discovery request. As the charges were dismissed prior to trial, can you imagine if Marsy’s law had been in place and limited the rights of the the Duke lacrosse players to fully investigate the blatantly false statements of the putative victim?

Additionally, under the amendment, the victim would have a right to proceedings free from unreasonable delay with a prompt and final conclusion of the case and any post-conviction proceedings. Two common occurrences in criminal cases that go to trial are 1. the accused’s waiver of his right to a speedy trial, in order to adequately prepare a defense and 2. the filing of appeals which can take years (if not a decade or more) to resolve. Under what would be newly enshrined constitutional rights, a victim’s right to a speedy trial may directly conflict with the accused’s decision to waive that right. Which of the dueling rights a court will choose to favor is an open question, because the proposed amendment does not address it.

Please read the full Public Notice of the proposed amendment here, and if it appears on the ballot this November, vote “No.”

The ACLU of Pennsylvania penned a Memo in Opposition to the Senate this June, which you can read here. They have also filed a lawsuit to block the question from reaching the ballot and to invalidate any votes that have been, or will be, cast for or against the question. Read more about the lawsuit and view the complaint here. A hearing on a preliminary injunction is currently scheduled for today, Wednesday, October 23, 2019, and the docket sheet regarding the ACLU’s action can be found here.

This article was written by Dillon Harris, a third year law student at Vermont Law, and was reviewed by Attorney Joshua Prince.

[alpacaheat]

ACLU's Court hearing today!