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Port: Marsy's Law campaign celebrates making the criminal justice system less just

Bob Wefald, a former North Dakota attorney general and retired judge, is a leading critic of Marsy's Law, which he said is unneeded and poorly worded, likely to result in costly litigation. Photo by Patrick Springer
Bob Wefald, a former North Dakota attorney general and retired judge, is a leading critic of Marsy's Law, which he said is unneeded and poorly worded, likely to result in costly litigation. Photo by Patrick Springer
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MINOT, N.D. — During the 2016 election cycle Kathleen Wrigley, wife of former Lt. Governor and current U.S. Attorney Drew Wrigley, was a local spokesperson for California billionaire and drug felon Henry Nicholas' hobby horse campaign against the rights of the accused.

Masquerading as a "victims rights" amendment to our state constitution, Marsy's Law has severely diminished our state's ability to reach just outcomes in criminal proceedings.

The most recent example of this was an opinion from a district court judge in western North Dakota which found that Marsy's Law allows a witness in a criminal proceeding to refuse pretrial questioning by the defense if they meet the law's loose definition of "victim."

The defendant is Ian Laboyd , who is 17 years old and stands accused of shooting two men: Matthew York, now deceased, and Patrick Haider, who Laboyd's attorney would like to question

Haider refused the deposition, arguing that he is a victim under Marsy's Law, and thus has a right in the state constitution to refuse.

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Judge Benjamen Johnson agreed. You can read his full opinion below, but here's the pertinent excerpt:

EMBED: Excerpt from State v. Laboyd

Wrigley is gloating.

"This ruling affirms what Marsy’s Law supporters have known all along — Marsy’s Law ensures that victims of crime have equal, constitutional rights on the same level as those accused and convicted of crimes — nothing more, nothing less," she writes in a letter to The Forum of Fargo-Moorhead .

I'll not be critical of Johnson. The courts have long held that the Sixth Amendment's confrontation clause (or "the right to confront your accuser" as its commonly known) is only a trial right. Meaning you don't have a right to confrontation pretrial. He was just following precedent.

But just because something isn't a right, at least in the eyes of the courts, does not mean it's something we can't afford to defendants.

Traditionally, in North Dakota, we have. Until the misguided Marsy's Law crusaders came along, our state allowed pretrial depositions in criminal proceedings. Now that's going to change, at least in some instances.

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Is that a good change?

Will it mean more justice, or less, in our imperfect criminal justice system?

Someone accused of a crime has their life and liberty at jeopardy, and aligned against them are the awesome powers and effectively limitless resources of the state. You get an attorney you have to pay for yourself, or else you get a public defender who is almost certainly overworked and underpaid, and you have to go up against a veritable army of cops and investigators and state forensic experts and prosecutors.

Until Marsy's Law came along, one thing North Dakota defendants could do is their own questioning of witnesses against them to prepare for trial. Now, if that witness is a victim (or even just has a close relationship to a victim), they can only be questioned by the defense at trial.

The cops and prosecutors get all the access they want to those witnesses, but the defense only gets one shot.

Again, will that mean more justice in criminal proceedings? Or less?

Another problem is that this "right" is predicated on the idea that the victim is, in fact, a victim of the accused who is supposed to be viewed as innocent until found guilty beyond a reasonable doubt.

What if the alleged victim is lying? I have no idea if that's the case in Laboyd's case. He may well be guilty. But false accusations are far from unheard of.

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People like Wrigley are utterly callous to these realities. They're too busy spiking the football on their bought-and-paid-for political victory to consider that they have almost certainly enabled more bad outcomes from criminal proceedings.

It's easy to win a political fight when you've got a billionaire backing your play.

It's harder to have the humility to consider that your campaign to protect people may actually be doing more harm than good.

To comment on this article, visit www.sayanythingblog.com

Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at rport@forumcomm.com .

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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