Prosecutors Tend To Remain Silent About Victims’ Right To Counsel

Los Angeles Daily Journal

November 3, 2023

In 2008, California voters passed Marsy's Law, which put crime victims' rights in the California Constitution. The right to counsel was included. Article I, Section 28(c)(1). People v. Smith, 198 Cal. App. 4th 415, 439 (2011), made this crystal clear: "Marsy's Law not only gives the victim the right to restitution but also to be heard through counsel . . ." There is no cost to the state or county because victims must pay for their own counsel.

A right is meaningless unless one knows about it. The California Supreme Court emphasized the importance of advising one of their right to counsel. “[T]here can be no doubt that the fundamental right to the assistance of counsel is guaranteed to all persons . . . charged with a misdemeanor . . . This guarantee, of course, is meaningless unless the defendant is made fully aware of it . . .” In re Smiley (1967) 66 Cal.2d 606, 614–615 (cleaned). Unfortunately, the right of victims to counsel is meaningless because most victims do not know about it. In California, there are about 500,000 crime victims a year. Crime victims are disproportionately poor and minority. This article will examine who is responsible for this breakdown.

The Penal Code mandates that victims be informed of their right to counsel. Penal Code section 679.026(b) provides “[e]very victim of crime has the right to receive without cost or charge a list of the rights of victims of crime recognized in Section 28 of Article I of the California Constitution.” The right to counsel is in Section 28(c)(1). Despite this statutory mandate, in most criminal cases, victims are not told of their right to counsel. Under the reasoning of the California Supreme Court, it is not the fault of victims for failing to ask about a right about which they do not know. “The defendant who does not ask for counsel is the very defendant who most needs counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request and by such failure demonstrates his helplessness.” People v. Dorado (1965) 62 Cal.2d 338, 351, overruled on other grounds in People v. Cahill, 5 Cal. 4th 478 (1993). It would be bizarre to argue that this rationale applies to the accused rapist but does not apply to the person who was raped.

Penal Code section 679.026(c)(1) requires prosecutors to provide a Marsy’s Card. The Marsy’s Card contains the crime victim rights listed in section 28(b) of Article I of the California Constitution. The rights listed in section 28(b) do not include the right to counsel. That right is in Section 28(c)(1). The mandate in Penal Code section 679.026(b), that victims be informed of all their rights under California Constitution Article 1, section 28 differs from the mandate in Penal Code section 679.026(c), that victims be given a card listing some of these rights.

Although Penal Code section 679.026(b) requires that victims be told of their right to counsel, it does not specify who must tell victims. One view could be that since the Penal Code is silent on who must notify victims, no one must tell them. This view would strip meaning from Penal Code section 679.026(b). The key meaning of this section is advising victims of their right to counsel. The other rights included within Penal Code section 679.026(b) are covered in Penal Code section 679.026(c). The latter section also specifies who must communicate those rights to victims. If no one must obey the mandate of Penal Code section 679.026(b) to tell victims of their right to counsel, that section is meaningless. "[A]n interpretation that renders statutory language a nullity is obviously to be avoided." Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1039 (cleaned). There is a simple way to determine who must tell victims of their right to counsel. Penal Code section 679.026(c) specifies that prosecutors must communicate the other rights to victims. The only reasonable interpretation of Penal Code section 679.026(b) is that prosecutors must tell victims of their right to counsel.

Since there are no penalties for violation of Penal Code section 679.026(b), this may be an obligation with no teeth. Can prosecutors ignore their obligation?

No, prosecutors have an ethical obligation to advise victims of their right to counsel. The Rules of Professional Conduct are the starting point for ethical obligations, not the end point. “The prohibition of certain conduct in these rules is not exclusive. Lawyers are also bound by applicable law . . . “ Rule of Professional Conduct 1.0(b)(2). There are two Business and Professions Code sections which extend statutory obligations into possible ethical violations. Section 6068 (a) requires attorneys to support the laws and constitutions of the U.S. and California. A second foundation for compliance with statutes as an ethical obligation is found in the combination of Business and Professions Code section 6103 and the attorney oath to uphold laws. Both Business and Professions code sections are used to find ethical obligations outside the four corners of the Rules of Professional Conduct. “[S]ection 6068(a) is a conduit for disciplining attorneys who violate laws and are not otherwise disciplinable under the State Bar Act.” Matter of Brimberry (Rev. Dept. 1995) 3 Cal. State Bar Ct. Rptr. 390, 397, fn. 9. Because the obligation of prosecutors to tell victims of their right to counsel under Penal Code section 679.026(b) is a statutory obligation, it is also an ethical obligation under the Business and Professions Code.

There is a second analysis which leads to the same conclusion. The same Business and Professions Code sections also mandate that attorneys support the California Constitution as part of their ethical obligations. It is not common for the Constitution and these Business and Professions code sections to be used together as the basis for an ethics violation. For many years lawyers could confidently say that their main obligation as to the U.S. and California constitutions was to speak the words: “I support the Constitution.” This has recently changed.

In the State Bar case against John Eastman, the very first count is based on Business and Professions Code section 6068 (a) and allegations that Mr. Eastman failed to support the Constitution. Paragraph 32, Notice Of Disciplinary Charges against Mr. Eastman, State Bar Court (2023). The State Bar is now pursuing violations of constitutional provisions as a basis for unethical conduct. Lawyers need to take ethical obligations related to the California Constitution seriously. State Bar Chief Trial counsel George Cardona has stated that an attorney's highest duty is to abide by the federal and state constitutions.

The California Constitution gives victims the right to counsel in criminal cases. Prosecutors interact with victims in criminal cases. Supporting the California Constitution means that prosecutors must tell victims about their constitutional right to counsel. The right to counsel is not a minor right, it is one of the most significant rights. It is a gate- keeping right. The advice of counsel opens the door to learning other rights. Without counsel, victims will never know most of their rights. For example, if an assault victim seeks restitution for counseling, the defense may subpoena her medical records. A victim without a lawyer will not know that she does not have to disclose her full records about her psychological treatment. She only has to disclose the costs. People v. Garcia (2010) 185 Cal. App. 4th 1203, 1212. This is a profound difference to a victim. This difference is hidden from victims who never learn of their right to counsel.

Prosecutors could use a short form letter. Just a couple of sentences advising the victim that the prosecutor does not represent the victim, and the victim has a right to their own counsel. A short letter would provide a critical right to victims and insulate the prosecutor from an ethics violation. It takes more time to argue over the analysis in this article than it would for a prosecutor to take this easy step.

This leads to a mystery. Why don’t district attorneys have their prosecutors take the simple step of notifying victims? The failure of a district attorney to have their prosecutors act ethically is an ethics violation by the district attorney. Rule of Professional Conduct 5.1(a). A district attorney’s mission includes keeping prosecutors out of harm’s way. When it comes to guiding prosecutors, a district attorney should be risk averse, not risk taking. Even if a district attorney thought there were a 75% chance this article was wrong, there would still be a one quarter chance that it was correct. This is a risk of an ethics violation for both prosecutors and the district attorney.

Two California counties provide a large percent of the 500,000 crime victims a year: Los Angeles County and Orange County. The district attorneys’ offices in these counties do not tell crime victims about their right to counsel. This is difficult to understand in view of the pro-victim public policies of these district attorneys. Los Angeles County District Attorney George Gascon is known for his liberal pro-victim policies. He created the Crime Victims Advisory Board. Orange County District Attorney Todd Spitzer was at the forefront of the political push to pass Marsy’s Law. It contradicts the pro-victim policies of these district attorneys to fail to inform victims of their right to counsel.

The California attorney general has an important role in victim’s rights. “The Attorney General shall design and make available a ‘Marsy Rights’ card, which shall contain the rights of crime victims described in subdivision (b) of Section 28 of Article I of the California Constitution . . .” Penal Code section 679.026(c)(3). The attorney general publishes a Marsy’s Rights Card (oag.ca.gov/victimservices/marsy). One hundred lines down the Marsy’s card (below Additional Resources) is the only reference to an attorney for the victim: “A victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the above rights in any trial or appellate court with jurisdiction over the case as a matter of right.” This does not inform victims of their right to counsel.

The victim rights card is in a tiny font, which makes it hard to read for some people. The font the attorney general has selected for important crime victim rights is much smaller than the font required for a car warranty exclusion. Insurance Code section 12820(b)(4) (12 point font). Used car sales persons must take a more careful approach to car warranties than the California attorney general uses regarding victims’ rights!

The California attorney general, Rob Bonta, continues the public pro-victim positions of his predecessors. The attorney general has a Victims’ Services Unit to help victims. These public positions are inconsistent with failing to advise victims of their right to counsel. The error of the attorney general is greater than the same error by the district attorneys. This is because the Penal Code assigns the attorney general a leadership role in communication with victims for the entire state. Instead of being a county wide failure, the attorney general’s failure to advise victims of the right to counsel infects the whole state.

The cost to notify victims of their right to counsel, a few sentences on a form letter, is nominal. The gatekeeping right to counsel could be very significant for a victim. A cost benefit analysis, regardless of ethics, dictates that victims be notified of this right.

Why do prosecutors who trumpet their concern for victims allow this fundamental constitutional right to stay hidden from half a million Californians a year? While the answer to this question is not clear, it is clear that this conduct may be unethical.