State v. Merrill: Victim’s Rights to Deny a Defense Attorney’s Interview

Interesting opinion.

Division III decided that  an attorney may be sanctioned for directly contacting a crime victim after the crime victim has exercised her rights under RCW 7.69.030(1) to have an advocate present at any prosecution or defense interview.

http://www.courts.wa.gov/opinions/pdf/317226.cor.pdf

The facts were such that defense attorney Mr. Harget was representing the defendant, Lucas Merrill, who was charged with assaulting members of the Gertlar family. The Gertlar family signed a “Notice of Victim’s Intent to Rely on RCW 7.69.030(10). Through the document, the Gertlars exercised their right to have a victim’s advocate present at any prosecution or defense interviews and demanded that any conduct, interview, or correspondence be arranged through the victim/witness office of the Spokane County Prosecutor’s Office.

Despite the family’s wishes to have a DV advocate present, Mr. Harget nevertheless contacted the victim’s family in an attempt to discuss the case. This happened not once, but twice. The victim’s family brought this to the attention of the Prosecutor; who in turn informed the court. Ultimately, Mr. Harget was sanctioned by the trial court. He appealed the sanctions.

The Court of Appeals upheld the trial court’s sanctions. It reasoned that a trial court has the inherent authroity to sanction lawyers for improper conduct during the course of litigation, but that generally requires a showing of “bad faith.” Furthermore, the court is encouraged to make an explicit finding of bad faith before imposing such sanctions. Finally, sanctions may be appropriate if an act affects the integrity of the court, and if left unchecked, would encourage future abuses.

The court further reasoned that, when invoked, victims of violent crimes have the right to have a victim advocate present during an interview by defense counsel or the prosecution under RCW 7.69.030(10). However, the right given by the statute “applies if practical, and if the presence of the crime victim advocate or support person does not cause any unnecessary delay in the investigation or prosecution of the case.”

Here, the Court of Appeals found Mr. Harget’s actions supported the sanctions against him.

My opinion? This is a very tricky case to dissect. I’ve interviewed dozens of crime victims – the good, the bad and the ugly – during my career. Some victims do not want to be interviewed. When this happens, I’ll usually argue a legal brief that states the necessity of conducting witness interviews for the matter at hand. I’ll couch my arguments in the 6th Amendment to the U.S. Constitution and also cite helpful statutes and cases from Washington State.

It’s highly necessary to interview victims. Sometimes, victims change their minds about the incident in question after thinking about it. Sometimes, they recant. Sometimes, they want the case dismissed and the No-Contact Orders to be rescinded. Sometimes, victims have alterior motives; or their version of the facts is inconsistent with other evidence, or they don’t have much opportunity to witness/observe the totality of the incident. A defense attorney must know these things before proceeding to trial. After all, a defense attorney can be found to be ineffective if they don’t interview witnesses and victims! So yes, I fully understand Mr. Hagley’s dilemma.

On this same note, I understand the concerns of the victim’s family’s as well. I’m sure they simply wanted to be left alone, and not contacted by Mr. Hagley at all.

Interesting case.