Proposal to Require Victim Input on Nolo Contendere Pleas Cited in CVRA Subcommittee Discussion

Page 17 of 78 2007 Utah L. Rev. 861, *884 ambiguous rules, but the Court has used it as a basis for deviating from the Rules in some circumstances. !4° Indeed, in some lower court cases, Rule 2 has proven outcome determinative. For example, in United States v. Broadus, the United States District Court for the District of Columbia used Rule 2 as a basis for deviating from the time limits imposed by Rule 29(c) for the defendant to seek a new trial. '4! Relying on Rule 2, the court determined that "a seemingly plausible inference from a criminal rule cannot command blind adherence if it would deprive an accused person ... of a just determination of his or her cause." !4? Using Rule 2 to protect defendants’ legitimate interests seems entirely proper. But crime victims need the same textual support to secure their legitimate interests. Not only is Rule 2 important, directly including crime victims in the language is important as well. Courts are used to resolving disputes between prosecutors and defendants, not considering the interests of crime victims. !*? That problem is, indeed, the whole reason for the passage of the CVRA. As Senator Feinstein has explained, "In case after case we found victims and their families were ignored, cast aside, and treated as non-participants in a critical event in their lives. They were kept in the dark by ... judges focused on defendant's rights, and by a court system that simply did not have a place for them." !4+4 For all these reasons, Rule 2 should be amended to make clear that the Rules must be construed to be fair not only to the parties, but also to victims. [*885] Rule 11(a)(3) - Victims’ Views on Nolo Contendere Pleas The Proposals: I proposed requiring courts to consider a victim's view before accepting any nolo contendere plea as follows: Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must consider the parties’ and victims’ views and the public interest in the effective administration of justice. !4 The Advisory Committee proposed no change to the rule. 4° Discussion: It is unclear why the Advisory Committee declined to change Rule 11 to require courts to consider victims' views on nolo pleas. The CVRA Subcommittee purported to catalog and briefly discuss all of my proposals that the subcommittee declined to recommend to the full Committee. Inexplicably, my Rule 11(a)() proposal (along with my other Rule 11 proposals) was not 147 mentioned and, thus, there is nothing in the available records to indicate that the Advisory Committee considered it. Possibly the reason the Advisory Committee did not recommend this change was simply oversight. Perhaps the Advisory Committee was relying on its "global" rule on victims’ rights (Rule 60) which provides that "the court must permit a victim to be reasonably heard at any public proceeding in the district court concerning ... [a] plea ... involving the crime." '48 But that rule deals solely with the subject of being "heard." Once the court has heard the victim, the question 40 See id. at 424-25 (referring to Fallen v. United States, 378 U.S. 139 (1964)). 41 664 F. Supp. at 598. 2 Td. at 596-97. 43 See, e.g., Beloof, supra note 6, at 289 (noting "state of denial" about crime victims’ rights by institutional actors); Russell P. Butler, What Practitioners and Judges Need to Know Regarding Crime Victims’ Participatory Rights in Federal Sentencing Proceedings, 19 Fed. Sent'g Rep., Oct. 2006, at 21, 21 (noting that the CVRA heralds a "new era" for crime victims' rights). 44 150 Cong. Rec. $4262 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein). 45 Cassell, Proposed Amendments, supra note 4, at 866. 46 Proposed Amendments, supra note 71. 47 CVRA Subcommittee Memo, supra note 66, at 17-20. 48 Proposed Amendments, supra note 71, R. 60(a)(3), at 16. DAVID SCHOEN HOUSE_OVERSIGHT_017652