THE ORIGIN AND EARLY DEVELOPMENT OF DIVO

1. THE ORIGIN AND EARLYDEVELOPMENT OF DIVO

2. Why have we not, until recently, attempted outreach to victim survivors? • We fear their anger and pain. • We don’t know what to say after we express sympathy. • We fear what being open to survivors will do to us in trying to represent our clients zealously. • We have tried and have gained nothing for our clients in the past. • We have never had a case where the survivors did not want the maximum penalty.

3. How Have We Overcome This? The modern effort to approach victim survivors systematically began in United States v. McVeigh. (first Oklahoma City bombing trial)

4. Why in McVeigh? What happened? • magnitude of harm done, suffering inflicted – cried out for response from the defense • difficulty within the defense team of responding • Defense attorney Richard Burr contacted Dr. Howard Zehr

5. Why in McVeigh? What happened? Con’t. • defense recognition: • Victim survivors were going to be part of impact testimony • need for the defense to disconnect harm from punishment – respond compassionately to the harm without jeopardizing our client’s interests • Susan Urbach’s testimony – testimony about life, not death – began to show the way • defense finally did respond – too little too late

6. Evolution of Practice Since McVeigh • Richard Burr and others involved in McVeigh continued to refine and promote practices • Survivors as witnesses in the penalty phase – Moussaoui • Routinely used on the federal level in capital cases • Increasing use in both capital and non-capital cases at the state level

7. DEFENSE-INITIATED VICTIM OUTREACH TODAY Principles, Ethics and Practices for Defense Attorneys

8. Foundational Principles

9. Foundational Principles • Crime creates an involuntary relationship between victim survivors and the person who committed the offense. • Victim survivors have needs that can be met only by the person responsible for the offense – needs for information, accountability, and putting right. • The person responsible for the offense has corresponding obligations to the victim survivors.

10. Foundational Principles • The principles of restorative justice help us understand what to do about this relationship. “[R]estorative justice philosophy starts with victims – the harms they experienced and their needs for repair. Helping an offender become accountable is a step toward restoring the victim. Offenders recognizing their obligations to their victims is the foundation of restorative justice.” Barb Toews, The Little Book of Restorative Justice for People in Prison 5-6 (2006)

11. Foundational Principles • DIVO is motivated by the recognition that the offender is obligated to address the harms caused by the offense, and that some of those harms can be addressed only by the offender. • DIVO recognizes that at least initially – and perhaps for the duration of legal proceedings – the defense has to be the proxy for the client in addressing the harms caused by the offense.

12. Foundational Principles • The first task of DIVO is to understand the specific harms that survivors experience. • The second task of DIVO is to learn about the survivors’ interests/needs, and to identify those that the defense can potentially meet. • Listening, learning, and responding – not advocacy on behalf of the offender – is the only agenda.

13. Foundational Principles • Providing information in response to the survivors’ interests/requests, to the maximum extent possible, is the core process. This is possible in every case. • Treating survivors with respect in every aspect of the case is essential. It is part of the obligation of putting right.

14. Foundational Principles • Accountability and putting right can be addressed in pleas, taking into account the interests and needs of survivors through specific provisions of the plea agreement.

15. Ethics

16. Ethics • Develop the relationship with survivors through an expert, victim outreach specialist (VOS). • The VOS must be an independent expert retained by the defense, not a member of the defense team. • The VOS is to develop a relationship with survivors and to bring the defense team and defendant into that relationship.

17. Ethics • The VOS must be, and be allowed to be, victim survivor-centered. The only agenda is to learn from the survivors and to help the defense team and defendant respond to the survivors. VOS cannot advocate with survivors on behalf of the defense. • Detail the parameters of the relationship between defense team and VOS.

18. Ethics 6. Defense team and VOS must have frequent and regular communication. 7. The defense team must respect the VOS’s relationship with survivors. 8. The defense team must trust that information communicated by survivors to VOS will be passed to the defense when the time is right.

19. Ethics 9. The defense team must respond to survivors’ questions. 10.The defense team and the VOS must work creatively and compassionately to meet survivors’ concerns and interests. 11. Zealous advocacy by the defense calls for victim outreach and is not compromised by victim outreach.

20. American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003): • Commentaries to Guidelines 10.7 & 10.11: Survivors are potential witnesses at both phases of the trial. Contact with them is thus essential to the investigation of the case.

21. Survivors often play a critical role in the prosecutor’s decision to seek death and to plead. Commentary to Guideline 10.9.1 (contact with the family of the victim is often “[a] very difficult but important part of capital plea negotiation”).

22. The defense should learn whether the survivors have interests that can be met by the defense. Guidelines 10.9.1(B)(7) & (8)(g) (in connection with plea discussions counsel “should know and explore with the client” both the “concerns of the [survivors]” and possible “concessions the client might offer such as ... meetings between [survivors] and the client” and “a public statement o[f] remorse, or restitution”).

23. Ethics • We must honor the paradox at the core of DIVO: The defense gains tangible benefits for the client only if the defense team works with integrity within the relationship it has with survivors, not if it seeks benefits for the clients from the survivors. The defense has the best chance of gaining what it wants for its client by not seeking it.

24. Practices

25. Practices • Point • Point • Point • Point

26. Practices • Request is made • Initial information gathered • VOS assigned • Funding secured • Face-to-face meeting to formalize agreement and strategies

27. Practices • Initial letter sent by defense • Initial letter sent by VOS • Phone call by VOS • In-person meeting • Requests conveyed to defense

28. Practices • Confidential • Victim-centered • Transparent

29. Utilizing DIVO in Defense Litigation

30. Giving survivors options to meet their needs increases the possibility of a life sentence for our clients. • Survivors often become a force for settlement rather than a force for death. • If the case goes to trial, victim impact evidence takes on a different character.

31. Life, rather than death, becomes a broad dynamic in a case. Humaneness, rather than retribution, motivates decision-making.

32. U.S. v. Cary Stayner [Stayner] sobbed and breathed heavily before he spoke: “I gave in to the terrible dark dreams that I tried to subdue. The craziness that lurked in my mind for as long as I can remember became a reality in this terrible crime, and I am sorry and ashamed.” LA Times, 11/30/00

33. Leslie Armstrong said she was glad Stayner addressed her, adding she can foresee forgiving her daughter’s killer someday. “I ached for him, I ached for me, I ached for everything. I wish we could all take it back and make things different. I will not live my life festering with anger, hatred and vengeance. I won’t do that.” LA Times, 11/30/00

34. DIVO as a Defense Response to Trauma

35. Purpose Of DIVO • DIVO provides a means for victim survivors to have access to the defense if they want it. Focus Of DIVO • DIVO concentrates on victim survivors and their needs, particularly those needs that can be addressed through a relationship with the defense.

36. P.I.N. PYRAMID POSITIONS INTERESTS NEEDS

37. Interests Voiced by Victims • Pay tribute to loved one • Regain control of their lives • Protect their families • Revenge • Need for general information about capital proceedings • Need for specific information about their case— what, why & when? • The option of telling the offender about the losses suffered

38. Interest Sometimes Voiced by Victims The option of having an ongoing link to the defense team throughout process.

39. Needs Voiced by Victims What is the meaning of victim’s interests? • Safety • Vindication • Information • Truth • Empowerment • Accountability But remember, every case is different.

40. Why is DIVO Needed? • Gaps in the criminal justice system -- Crime is against the state—The rules of the state, not the victim have been violated -- Justice is governed by law, not people -- Truth is found and justice is achieved through an adversarial process which: (a) Assumes a win/lose outcome (b) Polarizes people and encourages them to demonize each other (c) Assumes that the best way to achieve justice is through a regulated conflict

41. The legal system assumes that the best way to achieve “justice” is througha regulated conflict.

42. Why is DIVO Needed? • Experience of the victim/victim survivor - As witness - Bit player on the sidelines - Offender has more rights than victim survivor - Severity of punishment is a measure of the victim’s worth—pain will pay the debt. - Trauma exacerbated by the trial—cj system is overwhelming, frustrating and depersonalizing …and very slow from the victim’s perspective - Prolonged and recurring processes delay ‘recovery’

43. The Criminal Justice System often re-traumatizes victims “If one set out intentionally to design a system for provoking symptoms of traumatic stress, it might look very much like a court of law.” Judith Herman, M.D.

44. Purpose of DIVO DIVO offers victims the opportunity to reach a clearer realization of what matters , why those goals are important, and how those goals might be attained as part of, or in conjunction with, the criminal justice process.

45. What Does the Defense Offer Through DIVO ? • A link to address needs throughout the legal process. • Recognition of the potential of the adversarial process to further traumatize. • The use of VOS to bridge the gap and discomfort that usually exists between victims and the defense team.

46. What Does the Defense Offer Through DIVO ? • Opportunity to interact with both prosecution & defense. • Assistance in identifying needs that can be addressed by the defense. • If appropriate, collaborative processes and outcomes that are mutually beneficial to all parties.

47. GETTING DIVO STARTED

48. Judicial Funding • Right to be treated with “dignity and respect” • Tie it in to victim services that are mandated by law • The state has an advocate, the defense should have a VOS • Template funding motion is available • Hofstra article

49. Judicial Funding • It’s a minimal amount of money • May be able to provide testimony if needed • Motions should not be filed ex parte • Keeping the focus on victim needs makes it more difficult for the state to oppose • The state does not have access to the defense

50. Pleas • No expectation of a plea • Recall the paradox: The defense gains tangible benefits for the client only if the defense team works with integrity within the relationship it has with survivors, not if it seeks benefits for the clients from the survivors. The defense has the best chance of gaining what it wants for its client by not seeking it.