The criminal justice system in Connecticut is working to protect the rights of victims in many ways. In recent months the spotlight has been focused on additional protections for victims of domestic violence. But, in 1996 this state passed a constitutional amendment giving victims a voice. Known as the Victim’s Rights Amendment, it elevated victims to the status of active participant rather than passive observer. But how much real input do victims have?
First there must be an understanding of the manner in which the overwhelming number of criminal cases are disposed. Out of necessity, most criminal cases result in guilty pleas; however, defendants won’t simply throw themselves on the mercy of the court. That would be legal suicide. Prosecutors and defense counsel meet and discuss potential resolution of cases with a pragmatic eye toward early disposition. It benefits the accused; it benefits the state; and it benefits victims.
So what role should a victim expect? That question was answered by our Supreme Court in a decision to be released next Tuesday. The case is State v. Derek Thomas. Thomas was accused of repeated sexual encounters with a 15 year old victim. The victim had apparently demonstrated concern for the accused and had communicated some willingness to implore the court to be lenient. In plea discussions the state indicated that it would recommend a sentence of ten years suspended after the defendant served five years followed by probation. The charge of sexual assault in the second degree carries a mandatory minimum sentence of at least 9 months the execution of which cannot be suspended. The presiding judge participated in the plea discussions.
Our state system differs significantly from the federal system. By rule in the federal system a judge cannot participate in the plea discussions. Bargains are struck between prosecution and defense and the accused is made aware that the judge is not bound to accept what the lawyers have forged. In our state court, largely because of the unwieldy number of cases, our judges will participate in plea discussions in what are called pre-trial conferences. These do not occur on the record. As a practical matter the lawyers and the judge have to be able to speak freely and openly without fear that the press or others will repeat the talks that are aimed at seeking a resolution. If no common ground is reached conducting these talks in public could result in information being publicized that would severely impede the defendant’s ability to get a fair trial.
To some this appears to be a closed door, secretive process where back room deals are bartered. It is not. Often disputed facts peculiar to a case need to be hashed out in an informal atmosphere. Judges act as true mediators. Lawyers propose possible scenarios with the caveat that they have to ultimately get the authority of the client to bind the deal. For the state the victim’s attitude must be explored.
Before the 1996 amendment victims found themselves learning after the fact that their case was over. Too often they felt abused by the apparent secrecy of the plea bargain process. That all changed. Victims now have the right to be informed of potential plea bargains before they are completed. They have the right to be present and speak at the plea and sentencing hearings.
In the Thomas case the judge agreed to consider a lesser sentence of 5 years suspended after 1 year, and ordered a pre-sentence investigation. The probation department reported that the young victim had changed her attitude and now wanted Thomas jailed for 100 years! The judge, impressed by her concerns, was no longer willing to impose the more lenient term; and, Thomas was given the option to withdraw his guilty plea. He took an appeal claiming that double jeopardy had attached when the court accepted the initial guilty plea. The Supreme Court disagreed. The decision, authored by Chief Justice Chase Rogers, rejected the jeopardy argument. What was of greater importance was the sentencing judge’s decision to honor the change of heart of the young victim.
Rich Meehan is a senior partner in the law firm of Meehan, Meehan & Gavin, LLP, Bridgeport, Conn. For more information on Rich or his firm go to www.meehanlaw.com or www.ctdentalmalpracticelawyer.com, or e-mail Rich at firstname.lastname@example.org