MADDVOCATE FEATURES DEPARTMENTS. A magazine for victims and their advocates. SUMMER Prosecutors as Partners...

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1 SUMMER 2001 MADDVOCATE A magazine for victims and their advocates. MADD National Officers Joseph J. LoSchiavo Chairman Millie Webb President Jan Blaser-Upchurch Vice President/Victim Issues Carol McNamee Vice President/Public Policy Wendy Hamilton Vice President/Field Issues Cynthia Roark Secretary Robert Driegert Treasurer H. Dean Wilkerson National Executive Director MADDVOCATE Staff FEATURES Prosecutors as Partners By Pam Rogers Drunk Driving as Murder: One Case Study By Janice Harris Lord Building Bridges By Paul Chiano, Jr. In the Name of Love: Laws Named for Victims By Ruth Laird Stephanie Frogge Editor Catherine Madigan Technical Editor Laurie Tripi, John Evans, Jonathon Poe, Louanna Werchan Technical Advisors Laurie Tripi Distribution Coordinator The LTC Group Front Cover Design MADDVOCATE provides a forum where bereaved and injured victims of crime and those who advocate for them can share ideas, insights, and incentives for emotional, physical, and justice-oriented healing. In addition, guest columnists address specific issues of victims relative to grief, the criminal justice system, civil issues, and public policy. While primary readers of MADDVOCATE are victims of drunk driving crashes and MADD victim advocates, complimentary copies are mailed to advocates of other crime victims, at their request, to enable a more thorough understanding of homicide and catastrophic physical injury. MADD stands firm in its commitment to victims of crimes, understanding that coalition building and supportive sharing among all victim populations is critical if the voice of the victim is to be heard. Therefore, we welcome articles submitted by victims and advocates of crimes other than drunk driving. Any article in this magazine may be reproduced at no charge (with proper credit given), so long as the reproduction is used for the benefit of victims. Articles that include a separate copyright notice may not be reproduced without permission. DEPARTMENTS Victim Impact Voiceover Undercurrents MADDVOCATE Responds Poem Research You Can Use New Material Court Reporting Advocates in Action Organizations in Action Continuing Issues For additional copies, write to: MADDVOCATE, MADD National Office, 511 E. John Carpenter Frwy., Ste. 700, Irving, TX Or visit our website at MADDVOCATE was produced under the creative supervision of D A L L A S, T E X A S VICTIM SERVICES

2 VICTIM IMPACT By Michael Gilfarb In an impaired driving case tha t shook the co mm un i t y, As s i s t ant St a te At t o rney Mi c hael Gil farb req u es te d and was gran ted the unusual action of submitting his own Victim Im p ac t St a te m en t, which he re ad during the plea he ar i n g. Gil farb works for the E l e v enth Judicial Circuit of Fl o r id a ( Mi am i). The deepest definition of youth is life as yet untouched by trag e d y. Most of our troubles can be traced to saying yes too quickly and not saying no soon enough. Death is just a distant rumor to the young. But on June 1, 2000, Carla Wagner learned about recklessness; Helen Marie Wi t t y, age 16 for just six weeks, learned death is t ru e. We all know what happened before the crash, but that day, Helen Marie (H.M. to her friends) was in-line skating with her younger brother in front of her house. She wanted to go fas te r and longer and left her brother behind. Ms. Witty arrived home and wanted to speak to H.M., but Helen Marie wante d to go. Ms. Witty wanted to show her daughter a rece n t ly d eveloped photo H.M. had posed for, but she never had the c h a n ce. H.M. skated to the end of the block, spun around on her skates, and blew a kiss to her mother as she went backwards. She said, I ll be home soon. Someone at the Witty house realized it was dark and late. Jo h n Witty went out to look for his daughter along the familiar bike path. He could not even get close to the scene. He found his way to an office r, and as ked if they had seen a blond girl on s k a tes. He was let through the tape. Mr. Witty was shown a p h o tograph, but due to the condition of H.M. s body and his own shock, was unable to make an identification. The medical e x a m i n e r s wagon was called back to the scene as they hurriedly tried to make her presentable. Mr. Witty was finally able to r e cognize his precious daughte r. A police officer drove him home, where he had to te ll his wife and H.M. s brother. This crime has af f e c ted our co m m u n i t y. But Carla Wagner is not being made an example. She is being treated like anyone else who commits this crime and with this type of ev i d e n ce. Many in the community have opinions one way or the other about this case. Many people may think you lose your heart when you become a prosecuto r. The truth is: you can t be a Elements of a good Victim Impact Statement 3 to 5 minutes No repetition of evidence already presented Focus on what the crime means to the victim. p r o s e c u tor and not have a heart. I understand, as an Assistant State At to rney and as a person, that the punishment may seem harsh to some because of how they view what happened. What may affect many, like it af f e c ted me, is that as parents, we have to understand that our children could just as e as i ly be Carla Wagner as Helen Ma r i e Wi t t y. This case was not an accident; it was a crash. It was not caused by carelessness, but by recklessness. It was not caused by a ce ll phone. Driving is a divided attention skill, which Ca r l a Wagner further divided by using a ce llular phone under the i n f l u e n ce of tequila and marijuana. Our children are the living messages we send into a future we w i ll not see. The Wittys have one less messenger; the world is d e p l e ted for being deprived of her message. She should hav e been someone s first love. She should have been a mother. She should have been on Broadway. She should be here. He l e n Marie was, by all account, an angel among us. She, like all kids her age, did not expect to die. Driver s Judgment Day On June 1, 2000, H.M. was struck and killed by Carla Wagner, a 17-year-old honor student under the influence of alcohol and other drugs and using a cell phone at the time of the crash. Even as Prosecuting Attorney Michael Gilfarb prepared for trial, Mr. and Mrs. Witty, out of respect for their daughter s generous spirit and what they felt would be her wishes, suggested a plea bargain. They considered Ms. Wagner s youth and potential service to the community in making their decision. Instead of a possible jail term of 25 years, Ms. Wagner was sentenced to six years in a youth facility, 10 years probation, conditions of which are to speak to youth groups, ordered to pay restitution to the family, and ordered to donate $16.00 (Helen Marie s age) to MADD every year for 10 years on the anniversary of her death. Under the agreement, Ms. Wagner will be eligible for a mitigation of her sentence after three years, at which time the Witty s will have the ultimate authority, above the Court, the State, and the Defense, to determine whether or not the mitigation should be granted. 2

3 VOICEOVER By Millie Webb, National President When the offender who caused my crash back in 1971 went to court, I went too. I believed that the man who caused the fiery crash that burned my husband Roy, and me, and caused the death of our four-year-old daughter, Lori, and my 19-month-old nephew, Mitchell, would be punished. I was equally certain that the fact that the crash caused the premature birth of our daughter, Kara, and her legal blindness would be taken into account. I had watched the television drama Perry Mason, and I believed that the good guy wins. I learned better in the courtroom that day. He was convicted of manslaughter and was sentenced to two years probation. Because of my burns, I could not tolerate clothing. I had to wear a special gown to court. Rather than create respect or awareness for my status as a bereaved and injured victim of drunk driving, my appearance seemed to cause discomfort for others in the courtroom. This increased my sense of alienation from the judicial process. Thankfully, things have changed since my family s day in court. MADD victim advocates are changing the way victims are treated throughout the judicial process. Victim advocates are not only present in the courtroom today, they serve as partners with the prosecution. Victim advocates encourage prosecutors to seek new and creative ideas for sentencing as well as treatment for alcohol and other drug dependency problems. They help build a vision in which our communities operate as self-sufficient systems that address all aspects of this violent crime s impact on victims, families, and the community. Since the problem is comprehensive, so must the solution be. The cost to the victim should at least be shared, if not covered, by the offender who perpetrated the violence and destruction. In many cities across America, victim advocates work closely with prosecutors to help them see the vehicle as a deadly weapon when an offender is charged with a drunk driving death or injury. The act of drunk driving is no accident. 3 Having worked as a victim advocate with the prosecutors in my own chapter s jurisdiction, I ve seen a change in awareness in the past two decades. I ve discovered the joy of working with state attorneys who care about the bereaved and injured victims of drunk driving. I ve seen good prosecutors notify victims of their rights and assist them in preparing a Victim Impact Statement, now allowed in every state. My chapter is often called by the district attorney s office when a drunk driving case is filed because they know that our presence in the courtroom makes a difference. Prosecutors who deal with drunk driving cases on a regular basis help us to see gaps in the law and suggest ways in which these problems can be addressed from a legislative perspective. I see now how some of their struggles and frustrations are parallel to those my family experienced nearly 30 years ago when drunk driving wasn t even considered a crime in Tennessee. Many prosecutors today are equally frustrated when they encounter judges who don t take these crimes seriously or when they are unable to convince a jury to return a guilty verdict. Imagine the deterrent effect if every impaired driving case was prosecuted to the fullest extent of the law in every jurisdiction across America. As pioneers in victim assistance, MADD victim advocates must continue to partner with our prosecutors offices in every jurisdiction. We must educate, raise awareness, and demonstrate how we can help. We must also recognize and applaud aggressive prosecutors who pursue vigorous prosecution of first-time offenders as well as higher risk drivers, including repeat offenders and those with a blood alcohol content of.15 and above. I am delighted to highlight some of these hero prosecutors in the article that begins on page 6. My dream is that irresponsible behavior will come face-toface with responsible judgment one day. The only way to accomplish this goal is by working in partnership with prosecutors. In doing so, we may one day see that dream become a reality.

4 UNDERCURRENTS By Stephanie Frogge, National Director, Victim Services Did you hear the one about the blind snake and the blind bunny trying to determine each other s identity? The snake felt the bunny s soft ears and fluffy tail and recognized his friend as a bunny. The bunny felt the snake s dry scales and the way he slithered on the ground and recognized his friend as a lawyer. Lawyers may be one of the few populations left that you can make fun of and remain politically correct. But as we put together this issue of MADDVOCATE I had the opportunity to talk with prosecutors and prosecutor office staff all over the United States. I was surprised by what I learned. Twenty-six percent of our nation s prosecutors are parttime. There are hundreds of men and women who have obtained a four-year college degree then three more years of legal training and are willing to prosecute cases on behalf of the state on a part-time basis. In fact, 16 million Americans live in jurisdictions served by a part-time chief prosecutor. Of these prosecutors, about a quarter have reported being threatened or assaulted. The most recent data suggests that among all prosecutors offices, 49% indicated that at least one staff member experienced a workrelated threat or assault. The median total staff size in prosecuting attorneys offices is nine. That means half the offices in this country have fewer than nine employees, half have more. The median length of service for chief prosecutors nationwide is six years. About 18% have served in that capacity for two years or less. About half of the prosecuting attorneys offices in this country operate on an annual budget of less than $250,000. The Victim Services Department at MADD s National Office has an annual budget of more than twice that amount. Chief prosecutors earn, on average, $64,000 a year. Assistant prosecutors earn less. For every prosecutor earning a decent salary in a large department, there are dozens getting by on very modest salaries. And let s not even talk about case loads. When I consider the education level required to become an attorney and the number of hours put in by good prosecutors, frankly, I would not do the job. Thankfully though, there are some who will and most share MADD s mission to stop drunk driving, help victims, and prevent underage drinking. The prosecutors I ve met are generally more than willing to contribute their time at MADD trainings and events, help educate the public about impaired driving and underage drinking, and serve on an endless array of panels, commissions, boards, and committees. They juggle the realities of the law with the needs of the victim, all within a context of a limited budget and a fickle voting public. And in spite of the pressure, the median felony conviction rate for all offices was 89% in the last year in which data was collected. According to Joseph Eichhorn, Deputy District Attorney in Alameda County, California, and husband to Patti Eichhorn, former chair of MADD s National Board, it s the nuts and bolts that make up the work of a prosecutor. It s not like Law and Order, he says. Most prosecutors have a substantial caseload and the majority of the work is done at our desk, not in the courtroom. The most difficult part for me to imagine is preparing all those cases. I cannot imagine spending a day reading statements, interviewing traumatized or hostile witnesses, reconstructing crime scenes, looking at autopsy photos, then going home to a family and the work not having an impact. I cannot imagine my professional success or failure ultimately hinging, not on my good work, but the opinion of twelve people whom I ve never met before. I cannot imagine being sneered at or being made the butt of a joke because of a few unethical people who have brought shame on the whole profession. In this issue of MADDVOCATE we ve highlighted just a handful of prosecutors but there are countless others we could name. This issue celebrates all of them. It also honors the investigators, office staff, victim advocates, and others who work in the office of a prosecuting attorney. We see the results of your work in every case even when we don t meet you. And in many instances we count you as valued colleagues, friends, and sometimes, part of our own support system as we cope with this difficult work. MADD is grateful to each and every one of you! 4

5 MADDVOCATE RESPONDS By Jan Blaser-Upchurch, Vice President for Victim Issues Q: My children and I were involved in a crash almost a year ago. My older daughter suffered some injuries but is okay now. My younger daughter and I were uninjured. It was obvious at the scene that the woman who hit us had been drinking; I later found out her blood alcohol content was.12. This woman is dangerous and needs to be prosecuted. The fact that we weren t seriously injured or killed doesn t justify what she did, but the District Attorney s office doesn t seem to be taking this case very seriously. What can I do? Are we sup - posed to just wait until she kills someone? A: In your case the fact that anyone was injured gives you certain rights as a crime victim. There are a number of things you can do as a victim of a violent crime. Every state has some version of a Victims Bill of Rights. Because each state s definition of "victim" and "crime" are different, crime victims rights are not uniformly applied across the nation. In some states basic rights are afforded only to victims of felonies, while other states provide rights to victims of any violent offense whether felony or misdemeanor. Still other states may specifically list the offense. Regardless, the majority of states give victims the right to be treated with fairness, dignity, and respect, as well as the right to be informed of, present, and heard at important criminal justice proceedings. It is important that you are knowledgeable and informed. Find out what your crime victim rights are in your state. Your MADD advocate can give you that information as can the victim advocate in your local prosecuting attorney s office. Understanding your rights as a crime victim will help you move forward in your search for justice. 5 Contact the prosecuting attorney s office (sometimes called the district attorney, county attorney, or commonwealth attorney) in the jurisdiction where the crime occurred. Ask for an appointment so that you can discuss with the prosecutor assigned to the case details about your family s physical, financial, and emotional injuries. Prosecutors generally have a very large caseload and are unable to totally review each and every case in detail. A face-to-face meeting not only gives you the opportunity to address any questions or concerns you have regarding criminal prosecution, but also gives the prosecutor an opportunity to make sure that information in the case file is accurate and complete. Your MADD advocate can assist you in setting up this meeting and may be available to accompany you if that would be helpful. The prosecutor should discuss with you the elements that must be proven in order to get a conviction. Elements are the points of law that must be shown to be true in order for there to be a finding of guilt. Sometimes, regardless of what happened, there are one or more elements that cannot be proven in a court of law. If there is some difficulty with the elements, a prosecutor will likely seek a plea bargain, a reduction in the charges, or even a dismissal of the charges. Ask for restitution from the offender. In most states one of your rights as a crime victim is restitution, but it remains one of the most underutilized means of providing crime victims with a measurable degree of justice. Restitution laws are frequently revised by state legislatures to broaden the scope of restitution and to promote and improve its ordering and collection. Historically, only those persons who have suffered physical injury or financial loss as a direct result of a crime have been eligible to receive restitution from the offender for their out of pocket expenses. Today, not only victims themselves qualify for restitution, but, in some states, family members, victims' estates, private entities, victim service agencies, and private organizations that provide assistance to victims can seek restitution as well. Aside from the direct benefits to crime victims and society that come from restoring the victims' financial losses, there is a growing recognition that holding offenders directly accountable to their victims as part of a sentence has a rehabilitative effect on the offenders themselves. Your MADD advocate can help you formally request restitution but be prepared to provide receipts and other docu- Continued on page 26.

6 PROSECUTORS AS PARTNERS An ovation to every dedica ted prosecutor every - w here in the Un i ted St a tes who shares MADD s vision of a world without drunk driving and is working to make that vision a re a l i t y. We are pleased to hig hl ight just some of our pr o s e c u t o r p ar t n ers ar o und the co un t ry, but re co gn i ze that for e v ery one we mention, there are sco res more who go un hera l d e d. LONA MCCASTLAIN Prosecuting Attorney Lonoke County - Arkansas By Pam Rogers A Prosecutor can only guarantee two things: You will be honest with the victims and you will give this case your best effort. - from prosecutor training conducted by Mary Phillips, MADD, Salt Lake County victim advocate Prosecuting Attorney Lona McCastlain welcomes the chance to t ry tough cas e s brought to the courts of Lonoke County, Arkansas. McCastlain explains, We have made so many positive changes in the prosecutor s office. We promised an aggressive presence in the office and better management, and we delivered. First, McCastlain vigorously prosecuted 25 charges of providing alcohol to a minor against a parent who hosted an end of school party for junior high school students in her home. In an even more controversial matter, McCastlain took the heat when she prosecuted a state court of appeals judge for driving while intoxicated after he refused to submit to a breath analysis test. An Arkansas state trooper stopped the car driven by Judge John E. Jennings after seeing him drive left of center line on Arkansas Hwy 111. The trooper smelled alcohol on the judge s breath; Jennings also failed a vision test. Since it was a DWI first offense, the judge received $800 in fines and had his driver s license suspended for six months. According to MADD, Arkansas, It will be up to the Court of Public Opinion to determine whether Jennings maintains the respect and credibility necessary to sit on the bench rendering judgment of others. McCastlain plans to run for a third term in TOM GEAN Prosecutor, 12th Judicial District Fort Smith County Arkansas Attorney Tom Gean has built a compelling reputation s i n ce 1997 for his vigorous prosecution of DW I offenders and those who provide alcohol to minors. 6

7 In a very public case in which two teens were killed, Gean discovered that managers at a local fast food restaurant has provided alcohol to the 20-year-old driver. Not only did Gean secure the conviction of the offender, but also assured that charges were filed against the two men who purchased the liquor. His personal commitment to stop drunk driving influe n ced his tenure as president of the Arkansas Prosecuting Attorney's Association. A former president of the Fort Smith School Board and an appointed member of the Governor s Commission on Child Abuse, Rape and Domestic Vi o l e n ce, District Attorney Gean is currently a nominee to become a federal prosecutor under the Bush Administration. MARVIN CHILDERS State Representative Mississippi County -Arkansas Former Deputy Prosecuting Attorney Ma rvin Childers s e rved Mississippi County for 14 years before rece n t ly becoming a state representative for District 93. Personally affected by the loss of his sister and niece in a drunk driving crash, Representative Childers has a long history of commitment to DWI prevention, community education, and violator prosecution. Most significantly, Childers was instrumental in the passage of the.08 legislation, as well as other alcoholrelated measures, during this past session of the Arkansas legislature. His powerful presentations, personal story, and legislative accomplishments hallmark his success as a proponent of victims rights and DWI awareness in his service on the Arkansas Judiciary C o m m i t tee, the Legislative Council, and as Vi ce Chairman of the Judiciary Juvenile Justice and Child Support Committee. Michael Gilfarb was awarded MADD s 1995 Award of Honor and MADD s 1994 Award of Distinction MICHAEL GILFARB Prosecutor Miami-Dade County - Florida Numerous citations and honors highlight the legal a c complishments of District At to rney Michael Gilfarb in Miami-Dade County, Florida. As co-recipient of the Best Prosecutor in the Nation Award, (shared with Steve Talpins) from the Na t i o n a l Commission Against Drunk Driving, Gilfarb continues to create provocative legal outcomes and vital community policy. As a lead attorney, Gilfarb is known for his work on the Frye Hearing with DRE testimony, affirmed on appeal as a matter of great public importance in Williams vs. State, En Masse Hearing on Low Sample Volume Breath Samples, and Miami Beach No Video motions. Other leadership roles include IPTM Tr affic Homicide and Investigation School, Drug and Alcohol Recognition Technician School, DUI Committed Prosecutor, and DUI Chief. Indeed, his reputation for tough, decisive legal action is coupled with a deep understanding and respect for the feelings and wishes of victim families in supporting their participation in the legal process. Gilfarb explains, after a recent trial, The prosecutor must serve two masters - justice and society - zealously, aggressively, and compassionately. The prosecution here has ensured the ultimate justice by putting the defendant's punishment largely in the hands of the v i c t i m's family. Michael Gilfarb was awarded MADD s Award of Honor in 1995 and MADD s Award of Distinction for Gilfarb is the author of Victim Impact, which appears on page 2. DAVID MAER Assistant StateAttorney Miami-Dade County - Florida Assistant State Attorney David Maer makes certain that DUI cases are given priority in the Eleventh Judicial Circuit of Miami-Dade County, Florida. Working in the state court system since 1989, Maer has served in the County Court, Juvenile Court, Felony Court, and Public Corruption and Organized Crime divisions before becoming the Chief of County Court in Throughout his career, Maer s accomplishments have been clear evidence of his talent and creativity. In 1997, he received the US Department of Ju s t i ce Directo r's Award for his role as Special Assistant US Attorney in the prosecution and conviction of the largest health care fraud case in south Florida history. As Chief of County Court, he was 7

8 instrumental in establishing the role of Community Prosecution in Miami-Dade County; he also developed and secured a grant to fund the establishment of a community prosecution unit in the Caleb Center. GREG BOWER Prosecutor Ada County Idaho Ada County Prosecuting Attorney Greg Bower has been a front-runner in the promotion of sensitivity to victims' rights throughout the state of Idaho for many years. Through Bower's leadership, victim/witness coordinators have become a vital part of the prosecutorial process. By ensuring that the constitutional rights of victims are upheld, Bower s pioneering work in Idaho for victim advocacy continues to guide others toward a more humane philosophy of promoting and protecting victims' rights. Bower encourages individuals to participate fully within the trial process when possible. As his colleagues in the legal community learn from his advocacy and embrace the benefits of his philosophy, the social impact of his work continues to spread across the state as other counties implement many of the same programs. According to local MADD officials, "Through Greg Bower's leadership, victims of drunk driving crashes have had their voices heard by judges and defendants. We are confident that because of Mr. Bower's vision in the field of victim advocacy, protecting victims' rights has become a vital part of the legal process." JUD BARCE Prosecutor CRAIG JONES Deputy Prosecutor Benton County - Indiana Jud Barce, Prosecuting Attorney, and Craig Jones, Deputy Prosecuting Attorney, oversee rural Benton County, Indiana, and maintain more than a 95% conviction rate for OWI arrests. Both have attended the Indiana Department of Toxicology's training program for prosecuting OWI cases and the In d i a n a Prosecuting Attorneys Council's trial advocacy course for prosecuting OWI cases. Enforcing a no drop-no reduction policy in their jurisdiction, both prosecutors file all cases and prosecute at the highest possible level. They will not reduce any OWI offense to a lesser charge nor reduce any felony OWI to a misdemeanor. Barce and Jones maintain that a combination of certainty of punishment and escalating consequences for recurring bad conduct are essential elements of an effective OWI strategy. By consistently filing Indiana's habitual substance offender enhancement whenever appropriate, both prosecutors have obtained sentences in excess of 10 years for multiple offenders. As far as prevention is concerned, they work closely with the juvenile probation department in all matters, especially those cases involving alcohol or other substance abuse. As Jones explains, The earlier we can address problem behaviors, whether through the court system or through education, the more effectively we can prevent future crime. Prosecutor Barce believes in the value of counseling for substance abusers, but only in addition to punishment. Therefore, in all substance-related offenses, in addition to whatever sentence and/or fines may be imposed, Benton County requires each defendant to obtain an assessment and follow through with counseling. The earlier we can address prob - lem behaviors, whether through the court system or through educa - tion, the more effectively we can prevent future crime. Prosecutor Jud Barce MARC BARRON Assistant Prosecutor Oakland County - Michigan Assistant Prosecutor for Oakland County, Michigan, for nine years, Marc Barron is one of a handful of district attorneys in the community known as a major crime prosecutor of DUI offenses. Respected locally for compiling an impressive conviction rate, Barron is also recognized by MADD for his respectful partnerships with survivors and victim families. Known for his ability to explain the legal process to families as each case progresses, Barron consistently upholds the nonacceptance of plea bargaining for drunk driving offenses in Oakland County. Barron s ability to gather evidence and move each case to trial, while maintaining a close relationship with individuals impacted by the crime, hallmark his leadership in successful prosecution of DWI offenses. 8

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