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Only In New Orleans: Get Thrown In Jail For Being A Crime Victim

Posted by Alex K. Kriksciun | May 03, 2017 | 0 Comments

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In this episode of "Only In New Orleans" we take a break from the usual po'boys, neutral grounds, drive-thru daiquiri stands, jazz funerals, and the like to discuss how and why we send crime victims to jail for being crime victims.

We have a local organization called Court Watch NOLA, which recruits volunteers to watch the proceedings in each courtroom in Criminal District Court and to note any complaints, concerns, comments, compliments, and the like.  Every year, Court Watch drafts an annual report summarizing the observations of their volunteers and commenting on things they like and don't like at Tulane and Broad.

Some of the subjects of the report are fairly predictable: try to cut down on sidebars, try to cut down on continuances (by the way, since I started my own office, I have not requested a continuance for being unprepared as many defense lawyers tend to do), try to move cases quicker, and the like.

One of the suggestions made to the district attorney's office was to cut down on or eliminate the use of material witness warrants.  Material witness warrants work like this:  suspect gets arrested for a crime involving victim, victim is (for whatever reason) reluctant to testify against suspect, district attorney's office believes it needs victim to testify against suspect to secure a conviction, district attorney's office issues a material witness warrant against victim to compel victim to testify, if victim is still recalcitrant, district attorney's office forces victim to go to jail until victim sees the light and agrees to testify.

Yes, this kind of thing does happen.  For the life of me, I cannot understand the net positive of throwing a victim in jail in order to him or her to testify.  I also have a feeling that this doesn't really happen all that often, but it absolutely occurs, and I believe once is too often.  To that end, we had this article appear in the Times-Pic a couple of weeks ago.  It details several instances of crime victims being tossed in jail after getting cold feet on testifying.  In one instance, a sexual assault victim was jailed for 8 days in the same facility as her alleged attacker.  I don't care what the justification is for that – I can't help shake the feeling in my gut that this is not a “best practice.”  I also can't help shake the feeling that the district attorney's office is simply pissed off at Court Watch for bringing this issue to light. 

I fully understand that some people (especially my prosecutors out there) may disagree with me.  In the article, Chris Bowman, the spokesman for the Orleans Parish district attorney's office, stated “In light of the plethora of problems that this criminal justice system faces, the District Attorney is surprised that Court Watch NOLA focused so much of its resources and attention on an issue that, according to their report, only affected one person.”  I interpret this as, “why the hell did you people bring this to light?!?!?!  Can't you see good work we're doing on behalf of the people of Orleans Parish?!?!!?  We're trying to MAKE THE STREETS SAFER FOR CRYING OUT LOUD!”  This reminds me of a kid at a sleepover party complaining, after she gets caught red-handed with her hand in the cookie jar, that her friend's mom should be focusing on all the other kids that stole cookies rather than her.

Don't get me wrong, there is some merit in the DA's position.  I absolutely understand the argument that the state needs the testimony of the victim to secure a conviction (putting aside my opinion that the DA should be more interested in seeking justice rather than simply measuring success by how many people are sent to prison).  I have two issues with this argument.  First, not every case needs victim testimony to secure a conviction.   In a few cases, it absolutely is necessary, in a few cases, it is absolutely not necessary, and in most cases, victim testimony is helpful but not absolutely necessary.  Second, and perhaps more importantly, the argument assumes from a moral perspective that the need to secure a conviction is more important than the rights of the victim.  Put differently, the district attorney's office is saying that society has a greater interest in trying to secure a conviction rather than protecting the rights of the victim.

I am not willing to assume the latter.  First of all, the argument neglects an entire section of the Louisiana State Constitution devoted to crime victims' rights.  The very first sentence of that section states that a person who is a victim of crime “shall be treated with fairness, dignity, and respect, and shall be informed of the rights accorded under [the constitution].”  Further down, the section provides that “a victim of crime shall have . . . the right to confer with the prosecution” and the right to confer with the prosecution prior to imposition of sentence.  The rights to confer with the prosecution and offer an opinion as to sentence are optional, the mandate that victims be treated with dignity, fairness, and respect are not.  How the hell is the DA's office honoring the requirement that victims be treated with dignity, fairness, and respect by throwing said victim in jail?

Second, it seems obvious to me that if people are worried that they might be the subject of a material witness warrant, they would be less likely to report crime in the first place.  Isn't it preferable to concede a loss or a draw in a battle to increase your chances of winning the war (keeping in mind that, as aforementioned, there are often ways to win a particular battle without resorting to a material witness warrant)?  I suspect that theoreticians of power structures and strategy, from Sun Tzu to Foucault to Robert Greene would agree with me.

Third, I've seen no evidence that issuing a material witness warrant will make the victim any safer.  As pointed out by the linked article, many of these victims (particularly in domestic violence cases) have been through the system before and it hasn't worked out well for them when no material witness warrant was issued.

Interestingly, the article mentions that some top prosecutors have been elected on the promise not to throw ANY crime victim in jail after the incumbent prosecutor's political career was damaged by reports of material witness warrant abuse.  Sounds like this is similar to civil forfeiture in the sense that the general public gets wind of the practice and there's a public outcry.

If you have been issued a material witness warrant, or you find yourself in need of a criminal defense lawyer for any other reason, call the Law Office of Alex Kriksciun today!

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...

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