Kenna v. US District Court, No. 05-73467 (1-20-06). This is an important case regarding sentencing and a victim's right to allocute. This comes up on mandamus, and involves the right of a victim to be reasonably heard at a sentencing under the Crime Victims' Right Act (CVA). Somewhat surprisingly, there has been no other appellate decision on the extent of a victim's right to be heard. In this case, which involved a multi-million dollar swindle and fraud, victims were heard at the codefendant's (the father's) sentencing three months earlier than the present defendant's. At this present defendant's (Zvi Leichner) sentencing, the court stated that it had heard all it needed to hear from the victims, that he understood the loss and devastation, and took it into account. The court sentenced the defendant to 135 months (the father got 240). This mandamus followed. (The representation was star-studded, with Viet Dinh of Hogan and Hartson representing Senators Kyl and Feinstein , and Steve Twist, of a national Victim's Rights group, weighing in).
The 9th (Kozinski) holds that the CVA intended to give victim's the right to speak. The argument was that the statute read that the victim had a right to be heard, which meant the chance to convey views in written manner. Two district courts in other circuits had split on the issue. The 9th examined the language, the definition of" heard" (it has both possible meanings), legislative history, intent, and came down on the interpretation that the CVA intended to give victim's a right to actually speak to the court. The 9th therefore granted the writ, and, puzzling over the remedy, ordered that the district court reconsider whether the sentencing of the defendant be reopened. The 9th cautioned that a reopening is the only way to vindicate the victim's right to be heard, but also that such a reopening could well violate due process given that the defendant has not been heard in this matter, and has in fact been sentenced. The hot potato of remedy is back to the district court, and this panel retains jurisdiction.

In a concurrence, Judge Friedman, sitting by designation, cautioned that the holding swept too broadly in giving rights to victims. He would give greater discretion to the court. Judge Friedman wondered, for example, whether such a right has to be absolute, and for all victims. If the father had been sentenced that day, and an hour earlier, would the court have to permit statements again. Moreover, what if there were numerous repetitive statements. Judge Friedman believes that 'reasonably heard" means that a court could impose reasonable limitations. This decision should be limited to only the named victim.
Some issues and footnotes to this decision.

1. Senator Kyl pushed for the CVA. He also introduced SPA legislation this term that would eviscerate habeas and promoted the split of the 9th Circuit.
2. Judge Kozinski wrote at the beginning of the opinion that "The criminal justice system has long functioned on the assumption that crime victims should behave like good Victorian children--seen but not heard." (P. 3). I think that rhetoric got the better of the judge. Victims in my experience have alwayshad the appropriate respect and empathy of the federal criminal justice system. Prosecutors, judges, defense counsel, probation and other court personnel have always treated victims with the dignity and respect called for. There may be times that accounts need to be tested and challenged, but victims in federal prosecutions have long been afforded opportunities to express their views.
3. Judge Kozinski cited Robert Bolt's "A Man for All Seasons, which is a drama about Sir Thomas More's trial for treason and martyrdom for refusing to accept Henry VIII's declaration of supremacy over the Church. Think national security. Judge Kozinski cites it for the maxim that silence connotes assent. The whole thrust of the play, if memory serves, was that the law takes an opposite view, especially in matters of life and liberty. Judge Kozinski stating that the fact that no one in the Senate registered disagreement with certain Senators' stated position meant a consensus seems debatable. Moreover, it does a disservice to the play. Since, however, Judge Kozinski is familiar with the work, it may be useful for defense litigants to bring to his attention the noted exchange where Sir Thomas, debates with his fanatical prosecutorial Puritan son-in-law about legalities:

Sir Thomas: "The law, Roper, the law. I know what is legal not what is right. And I'll stick to what is legal."
Roper: "So now you'd give the Devil the benefit of law?"
Sir Thomas: "Yes. What would you do? Cut a great road through the law to get after the Devil?"
Roper: "I'd cut down every law in England to do that!"
Sir Thomas: "Oh? And when the last law was down and the Devil turned round on you, where would you hide, Roper, the laws all being flat."

This exchange has some relevance.