Victims’ wishes make cases complicated
Crime victims and their survivors, like the family of an Oakland bakery owner slain by robbers, sometimes speak out against severe punishment for the perpetrators. Do prosecutors have any duty to comply?
Not legally, analysts say, although some cases are hard to prosecute without the victims’ cooperation. But questions of policy and morality may raise deeper and more personal issues.
“Although the criminal case is brought in the name of the public, it’s common for prosecutors to feel that they are, in part, also seeking justice for the victims and their families,” said David Sklansky, a Stanford criminal law professor, co-director of the school’s Criminal Justice Center and former federal prosecutor.
“A crime is a crime against society, not just the individual victim,” said another former federal prosecutor, Laurie Levenson, now a professor at Loyola Law School in Los Angeles and founding director of the school’s Project for the Innocent. “Prosecutors need to consider whether this person is a threat to others and what kind of message is sent by the position they take. However, prosecutors do consider the thoughts of the friends and the family” when deciding what charges to file and what sentences to seek, she said.
Prosecutors and their advocates often equate their interests with those of crime victims. For example, a prosecution-sponsored initiative approved by California voters in 1982 was labeled the Victims’ Bill of Rights by its backers, though its main provision made it harder for defendants to challenge evidence seized by police.
A different perspective came from the family and friends of Jen Angel, fatally injured Feb. 6 when she chased the thieves who had broken into her car on an Oakland street, got tangled in the door of the getaway vehicle, and was dragged headfirst along the concrete.
The robbers have not been caught. In a statement after her
death Feb. 9, friends and relatives said the owner of Angel Cakes bakery was opposed to imprisonment and would have advocated alternatives even for her killers.
“As a longtime social movement activist and anarchist, Jen did not believe in state violence, carceral punishment, or incarceration as an effective or just solution to social violence and inequity,” they wrote.
A friend, Peter Woiwode, said Angel did not contact police, and instead turned to the community for guidance and support, after a speeding car smashed into the window of her bakery in 2019.
Similarly, the wife of a man who allegedly drove his Tesla off a cliff in January on Highway 1 in San Mateo County, seriously injuring both of them and their two children, did not want him charged with a crime, the man’s lawyer told a judge.
San Mateo County District Attorney Steve Wagstaffe nevertheless charged Dharmesh Patel, a radiologist from Pasadena, with three counts of attempted murder. Wagstaffe said statements from Patel’s wife, Neha, and other witnesses indicated his actions were intentional.
Progressive prosecutors who oppose severe sentencing have sometimes been accused of disrespect for victims, an allegation raised by some former staffers of San Francisco District Attorney Chesa Boudin in last year’s successful recall campaign.
When newly elected Alameda County District Attorney Pamela Price agreed recently to reduce murder charges to manslaughter and a 15-year sentence for a 2008 fatal shooting in Oakland,
the victim’s mother told The Chronicle: “I’m angry, I’m upset, but what can I do?”
The death penalty has also been a divisive issue, even among victims’ families. According to the Death Penalty Information Center, Connecticut’s repeal of capital punishment in 2011 was supported by a letter from relatives of 179 murder victims. And legislation repealing the death penalty in New Hampshire in 2019 was sponsored by a lawmaker whose father and brother-in-law had both been murdered.
California still has a death penalty law, though the state has not executed a prisoner since 2006 and Gov. Gavin Newsom declared a moratorium on executions in 2019. In potential capital cases, local prosecutors often follow the requests of a victim’s family when it suits their purposes, said Elisabeth Semel, a UC Berkeley law professor and co-director of the school’s Death Penalty Clinic.
“When the victims don’t want death and the D.A. doesn’t want to seek it for reasons specific to the case (weakness of the evidence, facts about the defendant), prosecutors amplify the victims’ views as a shield for what may otherwise be a politically unpopular no-seek decision,” Semel said.
“By contrast, when victim family members don’t want death, but the D.A. does for whatever reason, the views of the victim’s family are not part of the D.A’.s public statement, and the prosecutor, as the representative of ‘the community,’ seeks death,” she said. “This is another way of saying that, in some instances, victims are pawns in the exercise of prosecutorial discretion.”
But as an overall principle, Semel said, “no law requires prosecutors to ‘heed’ the requests of victims or families of victims. Prosecutors, as a legal matter, represent the government,” and “when the government accuses an individual of a crime, it acts on behalf of the entire population.”
A victim’s decision can be crucial in some cases — for example, said Hadar Aviram, a law professor at UC College of the Law in San Francisco, if a victim of domestic violence refuses to testify, successful prosecution is unlikely, because most prosecutors will not seek court orders requiring their appearance.
“But the victims are not the sole curators of what’s the appropriate disposition of criminal cases, because the prosecutors also have a responsibility to protect public safety and to maintain some parity (or) proportion across different cases,” Aviram said. “So the victim’s position is an important consideration, but by no means the only one.”
“Non-cooperation can doom a case to failure,” said Stanford Law Professor Robert Weisberg, co-director with Sklansky of the school’s Criminal Justice Center. “But if the D.A. wants to bring the case, they (the victims or their families) cannot legally stop it.”
“A crime is a crime against society, not just the individual victim. “Prosecutors need to consider whether this person is a threat to others.” Laurie Levenson, Loyola Law School professor