At the January 9, 2014, meeting, Judge Mockler’s pupilage group (featuring David Pastor, Jill Lifter, Jodi Reynosa, Pamela Marraccini, Ross Pytlik, Gregory Abel, Rita Holder and Taeho Chung) presented a series of skits related to Marsy’s Law, a 2008 California-approved ballot measure, which helps attorneys collaborate to assist criminal victims.
Marsy’s Law literally changed the definition of the word “victim,” expanding it to also include specific family members of the crime victim. The presentation highlighted how under Marsy’s Law, civil or family law attorneys can assist in protecting the victim and victim’s family.
Judge Mockler’s group used a hypothetical child molestation case to illustrate ways that attorneys can work together on a complex criminal case.
In the presentation, the defendant (played by Gregory Abel) was a teacher accused of molesting one of his students (Jodi Reynosa). Ross Pitlik portrayed the criminal defense attorney representing the defendant, while Dana Filkowski participated as the Deputy DA.
Pam Marraccini played the defendant’s mother, who was having a relationship with the abuser. David Pastor participated as a civil attorney representing the victim and Rita Holder had a role as a family law attorney representing the victim’s father, played by Taeho Chung, who was seeking sole custody of the child.
In the first scene, the civil attorney, David Pastor, informally interviewed Gregory Abel about the case, raising several ethical issues related to direct communication with an adverse party that he knows is represented by a criminal defense attorney.
Lesson to all attorneys: If the opposing party is represented by an attorney, even if that attorney is not adverse in your matter, you should remain aware of your ethical obligations.
The second scene discussed subpoenaing records in a criminal setting, the implications on the privacy rights of victims and the use of Marsy’s Law to protect the victim’s privacy. Pam Marraccini, as the mother, did not support her daughter’s account, as she had her own relationship with the abuser.
She directed criminal defense attorney Ross Pytlik to obtain records from the school that could be used to show the daughter’s lack of credibility. To obtain records from a third party in a civil matter, a lawyer can issue a subpoena duces tecum and receive the records directly from the third party. However, in a criminal matter, the subpoenaed documents are delivered to the court.
The DA has an opportunity to object before the records are released to defense counsel. This gives attorneys representing a victim an opportunity to protect the victim’s rights by requesting that the court preclude the defense from seeing the records if there is a relevant privilege, such as work product or psychiatrist-patient.
Even though the victim’s mother consented to the release, the court would not release the records due to the minor’s right to privacy and the fact that the mother was not acting in the best interests of the child.
In the third scene, the parties argued over another victim protection: anonymity. The nature of the criminal proceedings was causing great stress for the victim. The Deputy DA worked with Rita Holder, the family law attorney, to create the most protections for the victim, including referring to her as “Jane Doe,” closing the hearing, avoiding harassing questions and allowing support people to join the victim in the courtroom.
These efforts at victim anonymity sparked a discussion centered on whether the court would close the hearings to the public.
The fourth scene was used to demonstrate the ability of multiple counsel (Deputy DA, civil and family law), to advocate for the minor victim’s protection in a criminal proceeding in light of Marsy’s Law.
The discussion centered on the potential harm to the victim if the courtroom remained open, and how best to tailor any closing order to make it as limited as possible. The court heard statements from the DA, the father, the father’s family law attorney and the victim’s civil attorney relating to the victim’s legal rights and emotional harm, including the possibility that she would be unable to testify due to the stress. The court then weighed the victim’s rights against the right of the defendant to confront his accuser in public.
In the final scene, the defendant was found guilty and subject to criminal sentencing that included a restitution order. This vignette demonstrated that Marsy’s Law expanded the definition of victim to include other family members who are entitled to restitution.
Additionally, criminal restitution orders may include damages for pain and suffering and may include an award of civil attorney’s fees.
Judge Mockler’s group’s informative presentation provided insight into California’s improved victim’s rights that span many different legal fields.
The next Inns of Court meeting will be held on March 13, 2014. If you are interested in applying for RGMAIOC membership, please contact Scott Reep at Scott@Solanolawgroup.com.
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