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Case 9:08-cv-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 Page 3 of 4 S3608 U.S. SENATE, Washington, DC, June 6, 2011. Hon. Eric H. HOLDER, Jr., Attorney General; U.S. Department of Justice, Washington, DC. DEAR ATTORNEY GENERAL HOLDER: I am writing about the Justice Department’s im- plementation of the Crime Victims’ Rights Act--an act that I co-sponsored in 2004. These questions relate to an Office of Legal Counsel (“OLC’’?) Opinion made public on May 20, 2011 and more broadly to concerns I have heard from crime victims’ advocates that the Department has been thwarting ef- fective implementation of the Act by failing to extend the Act to the investigative phases of criminal cases and by preventing effective appellate enforcement of victims’ rights. I am writing to ask you to answer these ques- tions and explain the Department’s actions in these areas. GOVERNMENT PROTECTION OF VICTIMS’ RIGHTS DURING INVESTIGATION OF A CRIME When Congress enacted the CVRA, it in- tended to protect crime victims throughout the criminal justice process—from the inves- tigative phases to the final conclusion of a case. Congress could not have been clearer in its direction that using ‘“‘best efforts’’ to en- force the CVRA was an obligation of “Colfficers and employees of the Department of Justice and other departments and agen- cies of the United States engaged in the de- tection, investigation, or prosecution of crime . 7:18 U.S.C. §8771(c)(1) (emphasis added). Congress also permitted crime victims to as- sert their rights either in the court in which formal charges had already been filed “or, if no prosecution is underway, in the district court in the district in which the crime oc- curred.” 18 U.S.C. §3771(d)(3) (emphasis added). Despite Congress’ clear intention to extend rights to crime victims throughout the proc- ess, the Justice Department is reading the CVRA much more narrowly. In the recent OLC opinion, for example, the Department takes the position that ‘“‘the CVRA is best read as providing that the rights identified in section 377l(a) are guaranteed from the time that criminal proceedings are initiated (by complaint, information, or indictment) and cease to be available if all charges are dismissed either voluntarily or on the merits (or if the Government declines to bring for- mal charges after the filing of a complaint).” The Availability of Crime Victims’ Rights Under the Crime Victims’ Rights Act of 2004, Memorandum from John E. Bies (Dec. 17, 2010, publicly released May 20, 2011) (herein- after “‘OLC Opinion’’). Indeed, in that same opinion, I am surprised to see the Depart- ment citing a snippet from my floor remarks during the passage of the CVRA for the prop- osition that crime victims can confer with prosecutors only after the formal filing of charges. See id. at 9 (citing 150 Cong. Rec. $4260, S4268 (Apr. 22, 2004) (statement of Sen. Kyl). I did want to express my surprise that your prosecutors are so clearly quoting my re- marks out of context. Here is the full pas- sage of my remarks, which were part of a colloquy with my co-sponsor on the CVRA, Senator Feinstein: Senator Feinstein: Section .. . (a)(5) pro- vides a right to confer with the attorney for the Government in the case. This right is in- tended to be expansive. For example, the vic- tim has the right to confer with the Govern- ment concerning any critical stage or dis- position of the case. The right, however, is not limited to these examples. I ask the Senator if he concurs in this intent. Senator Kyl: Yes. The intent of this sec- tion is just as the Senator says. This right to confer does not give the crime victim any CONGRESSIONAL RECORD — SENATE right to direct the prosecution. Prosecutors should consider it part of their profession to be available to consult with crime victims about concerns the victims may have which are pertinent to the case, case proceedings or dispositions. Under this provision, victims are able to confer with the Government's attorney about proceedings after charging. 150 Cong. Rec. S4260, S4268 (Apr. 22, 2004) (statements of Sens. Feinstein & Kyl) (em- phases added). Read in context, it is obvious that the main point of my remarks was that a victim’s right to confer was ‘‘intended to be expansive.”’ Senator Feinstein and I then gave various examples of situations in which victims could confer with prosecutors, with the note that the right to confer was ‘‘not limited to these examples.’ It is therefore troubling to me that in this opinion the Jus- tice Department is quoting only a limited portion of my remarks and wrenching them out of context to suggest that I think that crime victims do not have any right to con- fer (or to be treated with fairness) until after charging. In giving an example that the victims would have such rights after charging, I was not suggesting that they had no such right earlier in the process. Elsewhere in my re- marks I made clear that crime victims had rights under the CVRA even before an indict- ment is filed. For example, in the passage quoted above, I made clear that crime vic- tims had a right to consult about both ‘‘the case’’ and ‘‘case proceedings’’—i.e., both about how the case was being handled before being filed in court and then later how the case was being handled in court “pro- ceedings.’ As another example, Senator Feinstein and I explained that we had draft- ed the CVRA to extend a right to victims to attend only ‘‘public” proceedings, because otherwise the rights would extend to grand jury proceedings. See, e.g., 150 Cong. Rec. $4260, S4268 (Apr. 22, 2004) (statements of Sens. Feinstein & Kyl). Of course, no such limitation would have been necessary under the CVRA if CVRA rights attach (as the De- partment seems to think) only after the fil- ing of a grand jury indictment. Courts have already rejected the Justice Department’s position that the CVRA ap- plies only after an indictment is filed. For example, in In re Dean, 527 F.3d 391 (5th Cir. 2008), the Department took the position that crime victims had no right to confer with prosecutors until after the Department had reached and signed a plea agreement with a corporation (BP Products North America) whose illegal actions had resulted in the deaths of fifteen workers in an oil refinery explosion. Of course, this position meant that the victims could have no role in shap- ing any plea deal that the Department reached. In rejecting the Department’s posi- tion, the Fifth Circuit held that ‘the govern- ment should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the vic- tims’ views on the possible details of a plea bargain.”’ Id. at 394, In spite of this binding decision from the Fifth Circuit, crime victims’ advocates have reported to me that the Justice Department is still proceeding in the Fifth Circuit and elsewhere on the assumption that it has no obligations to treat victims fairly or to con- fer with them until after charges are for- mally filed. Given the Fifth Circuit’s Dean decision, this position appears to place the Department in violation of a binding court ruling that extends rights to thousands of crime victims in Louisiana, Mississippi, and Texas. And more generally, the Depart- ment’s position simply has no grounding in the clear language of the CVRA. My first question: What is the Justice De- partment doing to extend to victims their June 8, 2011 right to fair treatment and their right to confer with prosecutors when the Justice De- partment is negotiating pre-indictment plea agreements and non-prosecution agreements with defense attorneys, including negotia- tions within the Fifth Circuit? CRIME VICTIMS’ RIGHT TO APPELLATE PROTECTION Protection of crime victims’ rights in ap- pellate courts is an important part of the CVRA. As you know, when Congress passed the CVRA, the federal courts of appeals had recognized that crime victims could take or- dinary appeals to protect their rights. See, e.g., Doe v. United States, 666 F.2d 43, 46 (4th Cir. 1981) (rape victim allowed to appeal dis- trict court’s adverse ‘“‘rape shield statute” ruling); United States v. Kones, 77 F.3d 66 (8rd Cir. 1996) (victim allowed to appeal adverse restitution decision). Congress sought to leave these protections in place, while ex- panding them to ensure that crime victims could obtain quick vindication of their rights in appellate courts by providing—in §3771(d)(3)—that “‘{i]f the district court de- nies the relief sought, the [victim] may peti- tion the court of appeals for a writ of man- damus.”” 18 U.S.C. §8771(d)(3). Ordinarily, whether mandamus relief should issue is dis- cretionary. The plain language of the CVRA, however, specifically and clearly overruled such discretionary mandamus standards by directing that ‘‘[t]he court of appeals shail take up and decide such application forthwith .... 18 U.S.C. §3771(d)(3) (emphasis added). As I explained when the Senate considered the CVRA: [W]hile mandamus is generally discre- tionary, this provision [18 U.S.C. §3771(d)(3)] means that courts must review these cases. Appellate review of denials of victims’ rights is just as important as the initial assertion of a victim’s right. This provision ensures re- view and encourages courts to broadly defend the victims’ rights. 150 Conc. REc. $4270 (Apr. 22, 2004) (state- ment of Sen. Kyl) (emphases added). Simi- larly, the CVRA’s co-sponsor with me, Sen- ator Feinstein, stated that the Act would create “‘a new use of a very old procedure, the writ of mandamus. This provision will establish a procedure where a crime victim can, in essence, immediately appeal a denial of their rights by a trial court to the court of appeals.’ 150 Conc. REc. $4262 (statement of Sen. Feinstein) (emphases added): see also id. (statement of Sen. Kyl) (crime victims must ‘“‘be able to have ... the appellate courts take the appeal and order relief). In short, the legislative history shows that §3771(d)(3) was intended to allow crime vic- tims to take accelerated appeals from dis- trict court decisions denying their rights and have their appeals reviewed under ordinary standards of appellate review. In spite of that unequivocal legislative his- tory, the Justice Department has in past cases asserted a contrary position. In In re Antrobus, 519 F.3d 1123 (10th Cir. 2008), Ken and Sue Antrobus sought to obtain appellate review of a ruling by a trial court that they could not deliver a victim impact statement at the sentencing of the man who sold the murder weapon used to kill their daughter. The Tenth Circuit ruled against them on the basis that the Antrobuses were not entitled to regular appellate review, but only discre- tionary mandamus review. See id. at 1124-25. The Tenth Circuit did not consider the legis- lative history in reaching this conclusion, leading the Antrobuses to file petitions for rehearing and rehearing en banc—petitions that recounted this legislative history. In re- sponse, the Justice Department asked the Tenth Circuit to deny the victims’ petitions. Remarkably, the Justice Department told the Tenth Circuit that it could ignore the HOUSE_OVERSIGHT_012720