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Are Crime Victims Revictimized?

Editor, News-Register:

It’s widely known within the legal community (although not so much by the average citizen) that prosecuting attorneys have broad discretion with regard to how they choose to prosecute — or not to prosecute — criminal cases. Sometimes that decision is influenced by issues such as a lack of resources or the unwillingness of witnesses to cooperate. At other times it may be influenced by political pressure, a prosecutor’s laziness or ineptitude, or even intimidation by a formidable defense attorney.

It’s often difficult for victims of crime to accept that a prosecutor has chosen to offer a defendant what seems to be minor consequences for a crime and even more difficult if a prosecutor has chosen to drop the charges altogether. A common misconception by victims is that a prosecutor represents them in criminal matters when that is just not the case. A prosecutor represents only the state’s interest and the victim is but a mere witness in the matter. Even so, most prosecutors at least make an attempt to explain to a victim the rationale behind decisions made in a particular case.

Unfortunately, there are prosecutors who do not make the effort. There may even be some who go so far as to bully and/or threaten a victim with phony criminal charges to coerce conformity. The discretion of prosecutors is not unlimited, and there are clear legal obligations they owe to victims.

When it became clear in the 1980s that crime victims in West Virginia were not always being treated fairly by our court system, our Legislature attempted to remediate this by passing the 1984 Victim Protection Act. Among other things, the Act requires that a prosecutor consult victims of crime in matters such as plea deals and the “disposition” of criminal cases.

It is a violation of this Act for a prosecutor to dismiss a criminal case without having at least consulted with the victim of a crime (§61-11A-6(a)(5)(A)(B)(C)(D)).

And last year our WV Supreme Court introduced a civility pledge to the oath that lawyers take to become licensed to practice law. At the time, Chief Justice (Evan) Jenkins called it an “important step of proactively promoting civility” within the legal profession and Justice (Tim) Armstead mentioned the importance of treating “the opposing side, the clients, the individual jurors and witnesses” with civility.

The WV Rules of Professional Conduct (http://www.courtswv.gov/legal-community/court-rules/professional-conduct/contents.html) require attorneys (and this includes prosecuting attorneys) to be ethical and truthful in all matters (Rule 8.4(c)). If you were a victim of a crime in your county and a prosecutor threatened you with phony criminal charges that had no basis in law when you resisted or disagreed with the plan for disposition of a criminal case, that is unethical and a violation of the aforementioned Rules of Professional Conduct. In that situation, you are perfectly within your rights to file a complaint with the WV Bar’s Office of Disciplinary Counsel about that attorney and your experience. For guidance on how that process works, see here: http://www.wvodc.org/

Diana Mey



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