By Sean Pendergast
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By Jeff Balke
By Richard Connelly
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By Craig Hlavaty
More than a month went by, says Ellerin, and he had not heard back from the prosecutors, so he delivered a letter to the DA's office asking them to contact him.
Three weeks later, Barnes struck a deal. In exchange for pleading guilty, he would receive 70 days in the county jail. Once again, says Ellerin, neither he nor Lopez was told about it.
"We didn't know about and we certainly were not present during the plea," says Ellerin on behalf of Lopez, who does not speak English. "They never told us about it afterwards either. We found out on our own, and they knew there was an interest. At the very least, on a professional level, I would have expected someone to call me. It was a sour experience."
Making matters far worse was the fact that once Linda and Ellerin felt that their and their client's victims' rights had been disregarded, there was absolutely nothing they could do about it. The law does not provide victims any way to enforce their rights after they've been violated.
"Just when we thought we were finally going to have the chance to have our say in court," says Linda, "we were blind-sided by the plea. And once it's done, it's done, and there's nothing you can do about it. It's truly unfair."
For victim advocates, getting a legal remedy on the books for victims after their rights have been walked on is akin to putting a man on Mars: It's the next great conquest, but one that probably isn't happening anytime soon. State legislators, who have the ultimate say, talk a good game, but admit that it's a tough fix.
"What do you do about accountability?" says state Senator John Whitmire of Houston, a Democrat who chairs the Criminal Justice Committee. "Well, I haven't figured it out. I don't know any other way to hold DAs accountable for anything they do other than to vote against them. There will be breakdowns, as there are in any system, but I think people are considerate of victims most of the time."
Permenter, the county DA's victim liaison, agrees, adding that the best way for crime victims in Houston to safeguard their statutory rights is to contact her victims' rights office.
Advocates concede that it would be impossible to void a plea deal, for instance, if the victim wasn't properly notified. The key, they say, is installing ways to make sure victims' rights are not violated in the first place.
"Providing a remedy after a plea has been approved is very difficult," says Susan Howley, director of public policy at the National Center for Victims of Crime in Washington, D.C., "so the best you can hope for is to prevent."
Howley and Kahan say safeguards such as requiring the judge to ask prosecutors whether the victim has been informed of a pending plea, or having a victim sign a form acknowledging that he has been informed, could go a long way to eliminating the pain and anger victims such as Linda and the Brooks family feel.
State District Judge Denise Collins, who presided over the Craig Washington case, declined to comment through a spokeswoman when asked if she tried to determine if the victims knew about the plea bargain.
While victims are afforded numerous rights in Texas, other states do a better job of protecting those rights. Nine states — Alaska, Arizona, Colorado, Connecticut, Maryland, Minnesota, South Carolina, Utah and Wisconsin — have an office or system set up to investigate and resolve victims' complaints. Texas does not.
"It seems to me," says Howley, "that if Texas had a victims' rights committee to receive and investigate complaints, then a prosecutor would not be likely to violate more than once, at least in order to avoid the hassle of having to respond and defend his or her actions."
In Maryland, the State's Attorney must certify to the court clerk that a victim was educated on victims' rights, and in Indiana, prosecutors are required to certify that they have shown a proposed plea bargain to the victims and that the victims had the chance to weigh in on the deal as part of the process, according to the National Center for Victims of Crime.
Some of the problems that victims have in Texas, as evidenced in the Washington case, have to do with how the laws are worded and interpreted. Advocates say Texas legislators need to beef up the language and make some provisions, such as notification, less vague.
Florida law, for example, clearly states that victims "shall be consulted" by prosecutors in order to get the victims' views on any disposition, including plea deals. And in Arizona, victims have the right to be heard at any proceeding, including a plea, and to confer with prosecutors "before any disposition of the case."
Kahan says he is working to get the Texas Legislature to address the issue of plea bargain notifications.
"If you're going to have victims' rights," he says, "they should be enforced, and if they're not, there should be safeguards and remedies. Right now that is not the case, but perhaps the Brooks and McAnulty case can be a catalyst to change that."
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