Posted by Paul Cassell:
Briefs All Filed on "Crime Victim" Issue in W.R. Grace Environmental Case:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235689598
I blogged recently about the W.R. Grace criminal trial, which started
this Monday. As alleged in the indictment, the case involves crimes of
"knowingly endangering" the residents of Libby, Montana. The district
judge has ruled that these knowing endangerment crimes do not produce
"crime victims" because they do not produce actual harm, only
threatened danger. Accordingly, the victims could not exercise the
right of crime victims to attend the trial, but instead were
sequestered as witness.
Yesterday the defense filed [1]their brief in the case. This excerpt
gives a feel for the defense argument:
This case, however, is anything but run-of-the-mill, and it
perfectly illustrates the dangers of departing from the hornbook
rule that the CVRA�s application to pre-conviction proceedings must
be determined from the factual allegations in the indictment. That
is so in part because the freestanding, postindictment allegations
of harm made by Petitioners depend on complex scientific and
medical judgments that are strongly disputed by Defendants�who will
at trial vigorously challenge the Government�s assertion that their
alleged conduct endangered any alleged victim of the charges at
issue in this case. But it is especially so because the indictment
utterly fails to specify both the particularconduct upon which its
broadly framed charges are based and the particular individuals
against whom the alleged offenses were committed, and because the
statute of limitations sharply circumscribes the extent to which
the indictment�s few particulars support chargeable criminal
offenses in the first place.
The district judge also filed [2]his own response to the petition,
which argues:
I am absolutely convinced my pretrial ruling, based on the issues
and complexity of the case, was correct. . . . In light of the
testimony of the eight witnesses who have testified I have no doubt
that if any of the witnesses is allowed to sit in the courtroom to
listen before testifying, it will significantly impact the ability
of any of all of the defendants to cross examine witnesses to point
out lack of memory, bias, confusion, and any other matter inherent
to the notion that cross examination and confrontation are the
crucible in which the truth must be tested.
I filed a [3]reply contending that:
knowing endangerment charges have �victims� within the protections
of the CVRA. Many federal criminal offenses are defined in terms of
�endangerment� or �risk� � including the most important
environmental crimes, attempted murder, drive-by shootings,
assault, stalking, child endangerment, mailing threatening
communications, and a whole host of other crimes where the essence
of the offense is placing a person at risk physically,
psychologically, or economically. These crimes are not by any
stretch of the imagination �victimless� crimes � particularly given
Congress� �intentionally broad definition of �victim� [in the
CVRA]."
The Government has also filed [4]a reply along similar lines.
The Ninth Circuit is working under the 72-hour decision requirement of
the CVRA. Thus, it has to rule by tomorrow (Friday) evening. Its
decision could be quite important in setting the boundary of who
qualifies as a protected "crime victim" under the Crime Victims' Right
Act.
References
1. http://volokh.powerblogs.com/files/Mandamus_Opp_-_ECF_Edition.pdf
2. http://volokh.powerblogs.com/files/molloyresponse.pdf
3. http://volokh.powerblogs.com/files/PARKER_REPLY_FINAL.pdf
4. http://volokh.powerblogs.com/files/governmentreply
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
