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The Blight of Victims: Cassell's Crusade

Championing the rights of crime victims is sort of like singing the national anthem. The sound and fury of it all signifies something, but the feeling soon passes. Unless you are United States District Court Judge Paul Cassell of Utah. He loves the feel of easy moral posturing. Indeed, it is his governing passion.

Cassell is on a crusade to place victims front and center in the criminal justice process. The contours of his crusade are on display in a draft of his paper entitled "Treating Crime Victims Fairly: Integrating Victims into the Federal Rules of Criminal Procedure." (Contact his office at the University of Utah, where he teaches law, for a copy: 801.524.3005) Call him Judge Judy with a heaping helping of Oprah Winfrey's moral sensibility.

As a private practitioner, Cassell represented victims of the Oklahoma City bombings in the Fortier case, where the trial judge was rebuked by the 10th Circuit for permitting victims to participate in oral argument at the sentencing hearing. U.S. v. Fortier, 242 F.3d 1224, 1230 (10th Cir. 2001), cert. denied, 543 U.S. 979 (2001). He also served as pro bono counsel on behalf of a Utah victim in State v. Casey, asserting the right to be heard at the time of sentencing. State v. Casey, 44 P.3d 756 (Utah 2002).

The purpose of a criminal trial is not, as Cassell suggests, to assure that the victim be made whole. That is a civil trial's purpose. A criminal trial does not start with a victim's pain and sorrow, but with the presumption of innocence. Whether the government can overcome that presumption with proof beyond a reasonable doubt is the drama of a criminal trial. We recognize at trial that some people who have broken the law go free. As the Supreme Court long ago noted, it is better than 10 guilty men go free than one innocent man be convicted.

But not in Cassell's world. The existential tragedy to be avoided in his universe is the unsatisfied victim. Victims in this wonderland cannot be compelled to do anything. The court lacks jurisdiction over them and cannot compel them to do such things as turn over records. But yet the victims can be heard throughout the proceedings. They can even have counsel serving as near co-counsel to the Government. Victims enjoy a constitutional right to privacy, this otherwise conservative jurists asserts.

Cassell transforms crime victims into privileged tourists who can dip in and out of a criminal proceeding at will. Yet they do so with impunity. No one can compel a person unhinged by grief to take an independent medical examination to assure that something other than rage speaks. No one can inquire too deeply into the past of the victim before he or she testifies. No one can question the victim's right to become a shadow government. In sum, Cassell's deification of crime victims is little more than a replay of an old theme in American history: vigilantism.

Of course, Cassell is not alone in this foolishness. Congress passed a Victims' Rights and Restitution Act in 1990 that called for sweeping changes in the federal criminal justice system.  Cassell's crusade holds as a central tenet that neither Congress nor the Advisory Committee on the Federal Rules of Criminal Procedure have gone far enough in assuring that victims are treated as full participants in the criminal justice system. Taken to its logical conclusion, Cassell's position yield's taxpayer-financed private prosecutions.

Crime victims hurt. No question about it. But it is the unreasoning character of their pain that makes them unsuitable to call the shots in a criminal proceeding.  A person undone by grief should not be a judge in their own case. That's why we have professional prosecutors. That's why we have taken the noose from the hands of the angry mob and calibrated punishment to social harm.

Prosecutors already seem hell-bent on criminalizing just about everything. Do we want now to encourage them deify the rage of injured people, transforming criminal courts into something akin to Dante's Inferno? The victims' rights movement is a torrent threatening to sweep the rule of law into the gutter.  Cassell seems eager to help that happen, an odd role for a judge.