A California tech billionaire facing felony drug trafficking charges in Las Vegas has spent about $5 million this election cycle to convince Kentuckians to adopt a “crime victim’s bill of rights” as a state constitutional amendment on Nov. 6.
As part of a $45 million national push that will include six states this fall, Henry T. Nicholas III of Orange County, Calif., has underwritten the cost of an aggressive marketing campaign in Kentucky to promote “Marsy’s Law,” named for his sister, who was murdered in 1983. It cost him $383,894 in Frankfort political lobbying over the last three years just to get the Kentucky legislature to put it on the ballot.
Kentucky’s version of Marsy’s Law would establish a dozen constitutional rights for crime victims, many similar to rights that have existed in state law since 1986. They include the right to be heard at court proceedings; for proceedings to be free from unreasonable delay; to be notified when a defendant is released or escapes custody; to have reasonable protection from the accused and those acting on behalf of the accused; to have consideration for their safety, dignity and privacy; and to consult with prosecutors.
Although victims would not have “standing” in court — that is, criminal cases would still have just two opposing parties, the state’s prosecutors and the defendants — judges would have to protect victims’ constitutional rights as vigorously as they did the rights of the accused. When victims and their attorneys came to the courthouse, court officials would be required to listen to them.
“It will change the culture of the justice system and allow victims to heal,” said Ashlea Christiansen, state director of Marsy’s Law for Kentucky.
Critics say Marsy’s Law promises to sow confusion in the courts by giving one or more designated crime victims a formal say at every important hearing, even before a defendant is convicted and it hasn’t necessarily been established that a crime has occurred.
“This has the potential to make circuit court look like a zoo,” said David Ward, a Winchester attorney and president of the Kentucky Association of Criminal Defense Lawyers.
“If you have a multiple-victim homicide, for example, with spouses and children, you could have three, four, five people, each with their own attorneys, standing in the courtroom every time, all of them with their own ideas about what should happen next,” Ward said.
Existing law already gives crime victims the right to explain to the courts before sentencing how they were harmed and to request notification when an inmate is released from custody, among other legal protections, Ward said.
But those laws don’t carry the weight of constitutional protection, and they often don’t go as far as Marsy’s Law would, Christiansen said. For example, current law lets crime victims submit a written “impact statement,” while Marsy’s Law would guarantee them a more active role speaking at the sentencing hearing, she said. To many crime victims, that’s not a small difference, she said.
One of the television commercials promoting Marsy’s Law highlights this point. In the spot, Jessica Schweitzer, widow of Louisville Metro Police Detective Jason Schweitzer, who was hit and killed by a Lexington drunken driver in 2016, says she was upset because the judge who sentenced her husband’s killer to 20 years in prison did not let her speak in the courtroom at the hearing.
“The criminal justice system in Kentucky was another nightmare,” Jessica Schweitzer says in the commercial. “Somewhere along the way, I felt like my voice was taken. I was not allowed to read my victim-impact statement in court and be the voice for my husband.”
It’s not certain that the Marsy’s Law amendment will take effect even if voters approve it. A Franklin Circuit Court judge ruled Oct. 15 that the short ballot question crafted by legislators is misleading because it fails to accurately state what the amendment would do. As a result, the votes on Marsy’s Law can be counted but — for now, at least — not certified by state elections officials.
A legal appeal to the Kentucky Supreme Court is likely to decide the matter after the election.
In an interview this week, Christiansen downplayed the significance of the Aug. 7 arrest of Nicholas on four counts of trafficking in heroin, cocaine, methamphetamines and ecstasy at a Las Vegas casino. The felony case against the billionaire, who co-founded and later sold tech company Broadcom Corp., is pending, according to Nevada court records.
Previous felony indictments against Nicholas for securities fraud and narcotics were dismissed in 2009 and 2010, respectively.
“The way that I look at it is, this effort is so much bigger than one person,” Christiansen said. “Yes, it’s funded by one individual, but it’s not about him.”
Nicholas did not return a call seeking comment this week at his Aliso Viejo, Calif., office. According to the national Marsy’s Law for All Foundation, Nicholas’ sister, Marsalee “Marsy” Nicholas, was stalked and killed by her ex-boyfriend in 1983. Nicholas’ mother ran into the accused killer in a grocery store a week later, not knowing that he had been released on bail.
Campaign-finance records show that Nicholas has bankrolled an ambitious campaign for Marsy’s Law in Kentucky since 2015, hiring Republican-connected firms such as RunSwitch PR, run by former White House operative Scott Jennings, and McCarthy Strategic Solutions, led by former Republican Party of Kentucky chairman John McCarthy.
Nicholas also has paid for advertising, polling, research from the Pegasus Institute in Louisville, a team of field representatives, lawyers to defend the ballot measure in court, even an RV at the Fancy Farm political picnic in Graves County.
Six other states have passed a Marsy’s Law so far, also funded by Nicholas, although not without controversy.
The Montana Supreme Court struck it down in that state last year, saying it should have been submitted to voters as individual questions rather than as one sweeping initiative. And this year, after debating whether to repeal Marsy’s Law, South Dakota voters chose to amend sections that were proving unwieldy in the legal system.
Among the problems in other states has been confusion over whether law-enforcement agencies can use the privacy guaranteed to crime victims under Marsy’s Law in order to withhold police reports from the public. In North Dakota, for instance, police this month refused to release information about an officer-involved shooting, citing the Marsy’s Law rights of both the man who was shot and the officer who shot him.
But Kentucky lawmakers carefully drew a narrower privacy definition than North Dakota did, said Kentucky state Senate Judiciary Chairman Whitney Westerfield, who sponsored the ballot measure in the General Assembly last winter. North Dakota prohibits the “disclosure of information or records” that could be used to locate or harass crime victims, while Kentucky simply guarantees “due consideration” of a victim’s privacy, Westerfield said.
“It’s not at all an apples-to-apples comparison when you look at the other states,” said Westerfield, R-Hopkinsville. “Ours is a very Kentucky-specific measure.”
However, Westerfield acknowledges that the two-page constitutional amendment leaves a lot of detail to be fleshed out by future court decisions.
It is possible a police department somewhere in Kentucky might withhold an arrest report under the argument that its release would violate the privacy of crime victims, he said. And another section of Marsy’s Law shielding crime victims from “those acting on behalf of the accused” could prevent defense attorneys from approaching victims with a deposition or subpoena necessary to prepare their cases for trial, although it was meant to protect victims from harassment by angry relatives or menacing gang members, he said.
“We can’t, in the statutes and in the constitutional amendments, account for every possible fact-pattern that a court is going to see,” Westerfield said. “We have to allow the courts to work these things out.”
Ward, the defense lawyer, said he’s wary of a vaguely worded change to Kentucky’s constitution that will depend on judges to work out the details. Lawmakers left little guidance for the courts in “the legislative record,” he added, referring to the formal recordings of their deliberative process as they passed the ballot measure through the General Assembly.
If the legislature really wanted to help crime victims, it could increase funding for the justice system, including prosecutors and public defenders, so the courts operated more efficiently, Ward said.
“It seems very cynical to me,” Ward said. “Marsy’s Law is the appearance of action on behalf of victims, so you can go back to your districts and say, ‘Look what I voted for,’ without actually doing anything of substance for most of them.”
The Nov. 6 ballot question
“Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and to have a voice in the judicial process?”
The Marsy’s Law constitutional amendment
“To secure for victims of criminal acts or public offenses justice and due process and to ensure crime victims a meaningful role throughout the criminal and juvenile justice systems, a victim, as defined by law which takes effect upon the enactment of this section and which may be expanded by the General Assembly, shall have the following rights, which shall be respected and protected by law in a manner no less vigorous than the protections afforded to the accused in the criminal and juvenile justice systems:
“Victims shall have the reasonable right, upon request, to timely notice of all proceedings and to be heard in any proceeding involving a release, plea, sentencing, or other matter involving the right of a victim other than grand jury proceedings; the right to be present at the trial and all other proceedings, other than grand jury proceedings, on the same basis as the accused; the right to proceedings free from unreasonable delay; the right to consult with the attorney for the Commonwealth or the attorney’s designee; the right to reasonable protection from the accused and those acting on behalf of the accused throughout the criminal and juvenile justice process; the right to timely notice, upon request, of release or escape of the accused; the right to have the safety of the victim and the victim’s family considered in setting bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction; the right to full restitution to be paid by the convicted or adjudicated party in a manner to be determined by the court, except that in the case of a juvenile offender the court shall determine the amount and manner of paying the restitution taking into consideration the best interests of the juvenile offender and the victim; the right to fairness and due consideration of the crime victim’s safety, dignity, and privacy; and the right to be informed of these enumerated rights, and shall have standing to assert these rights.
“The victim, the victim’s attorney or other lawful representative, or the attorney for the Commonwealth upon request of the victim may seek enforcement of the rights enumerated in this section and any other right afforded to the victim by law in any trial or appellate court with jurisdiction over the case. The court shall act promptly on such a request and afford a remedy for the violation of any right. Nothing in this section shall afford the victim party status, or be construed as altering the presumption of innocence in the criminal justice system. The accused shall not have standing to assert the rights of a victim. Nothing in this section shall be construed to alter the powers, duties, and responsibilities of the prosecuting attorney. Nothing in this section or any law enacted under this section creates a cause of action for compensation, attorney’s fees, or damages against the Commonwealth, a county, city, municipal corporation, or other political subdivision of the Commonwealth, an officer, employee, or agent of the Commonwealth, a county, city, municipal corporation, or any political subdivision of the Commonwealth, or an officer or employee of the court. Nothing in this section or any law enacted under this section shall be construed as creating: (1) A basis for vacating a conviction; or (2) A ground for any relief requested by the defendant.”