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Utahn champions victims’ rights

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Marsha Kight traveled from Oklahoma City to Denver in 1996 to hear for herself all the evidence against Timothy McVeigh and Terry Nichols.

Her daughter, Frankie Merrill, had been killed in the April 19, 1995, bombing of the Alfred P. Murrah Federal Building, and she needed to know what happened.Only 23 years old, Merrill was blown out of the building and died from a broken neck and back. It took an agonizing five days to confirm that she was among the 168 victims. She left behind a baby, now 5 years old, and a grieving family.

"She was the most important thing in my life," Kight said of her daughter. "I think for every crime victim, it's important to hear and to understand, to participate in the process."

But the federal judge hearing the case told Kight and 32 other relatives of bombing victims - victims in their own right - that they couldn't attend the hearings if they also intended to testify during the victim impact phase of the trial.

Kight said she felt "discounted" by the judge's ruling. "We all tearfully and painfully made our decisions," she recalled. "Most decided to go home. I made a decision to stay and attempt to overturn the judge's ruling. That's when I was put in touch with Paul Cassell."

A University of Utah law professor, Cassell was well-known in legal circles as a leading advocate of victims' rights. And he had shown a willingness to descend from the "ivory tower" of academe to do battle in the legal and political trenches. He had testified several times before Congress on the subject of victims' rights and a proposed constitutional amendment to protect those rights, and he was active in court.

With the help of a battery of other lawyers and support from a number of national organizations, Cassell took the case on behalf of 89 victims and survivors of the Oklahoma City bombing. They lost in court, where an appeals panel ruled that victims had no legal standing or First Amendment right to challenge the judge's ruling.

A few days later, however, Congress passed a law giving victims of federal crimes the right to attend a criminal trial and testify at any subsequent sentencing hearing.

Though it was only a partial victory, Kight says it helped raise her own and the public's awareness of victims' rights. For that, she credits Cassell.

"It made me realize how difficult it is for victims of crime," said Kight. "We had the power of numbers, but what about someone who is alone? A single victim can be very intimidated by the judicial process; they don't know where to seek help."

Cassell agrees and says that's not all that's wrong with the criminal justice system. Death penalty cases drag on for years and years even when guilt is not at issue; thousands of crimes are going unsolved each year because of the Miranda rule, and critical rules are being made by judges instead of legislators, according to Cassell.

From his tiny office at the U. College of Law, Cassell regularly thrusts himself into public, political and judicial debates over the criminal justice system.

For example, he organized this week's national symposium on "Crime Victims' Rights in the 21st Century," which brought a panel of prominent legal scholars and experts from throughout the country to the U. campus.

A young 39, brash and adept at using the media to make his case, he is arguably Utah's best known and most controversial law professor.

Cassell is a graduate of Stanford Law School, where he was president of the Stanford Law Review. He clerked for then-Judge (now Justice) Antonin Scalia on the U.S. Court of Appeals and later for Supreme Court Chief Justice Warren E. Burger. In 1986, President Ronald Reagan appointed him deputy attorney general. Two years later, he became a federal prosecutor in the Eastern District of Virginia, which was known as the "rocket-docket" district because of its fast-moving caseload. He joined the U. faculty in 1992.

Cassell said he and his wife, Patricia, an Idaho native and also an attorney, wanted to return to the West, and "I saw the U. as the best law school in the area, with an extremely talented group of professors."

At the U. he teaches criminal procedure and evidence, stressing practical applications. When he's not teaching, he's pursuing his goal of "fixing the criminal justice system."

That entails research, publishing studies and reports, writing articles and op-ed pieces for national publications, promoting his efforts through media interviews, joining in litigation that could further his causes and lobbying for changes in laws and procedures.

Earlier this month, he was being quoted in newspapers throughout the country regarding a report he authored that contends more than 28,000 violent crimes and 79,000 property crimes go unsolved each year because of the U.S. Supreme Court's 1966 Miranda ruling. Among other things, Miranda prohibits police from questioning suspects who refuse to waive their right to remain silent.

Sponsored by the National Center for Policy Analysis, Cassell's research concluded that Miranda has, as critics have claimed over the years, "handcuffed the cops." The study cites FBI statistics that show what Cassell calls a "staggering" drop in crime clearance rates beginning immediately after Miran-da went into effect.

Police may have learned to "live with it," but Miranda is interfering with their ability to solve crimes because "it discourages suspects from cooperating with police," he said.

According to Cassell, Miranda is mistakenly considered a constitutional requirement when in fact it's only an "artificial" safeguard against coerced confessions. A number of federal judges, including one in Utah, have severely undercut Miranda over the objec-tions of the Clinton administration. Cassell, who has filed legal briefs in some of those cases, predicts it will be overruled entirely within the next few years.

The so-called "third degree" approach to interrogations had already largely disappeared even before Miranda went into effect, and police officers today are much better trained and generally conduct themselves professionally, Cassell said. He suggests there are better ways to protect a suspect's rights without tying police officers' hands, such as videotaping interrogations.

In another, earlier study, Cassell took aim at assertions that hundreds of people have been wrongly convicted of capital crimes and that dozens may have been executed. Cassell says there is no documented evidence of any innocent person being executed in this country in the past 50 years.

At the same time, he assails the death penalty appeals process, which he says allows defense lawyers to file multiple and duplicative appeals that drag on cases for years even when the condemned person's guilt is not in dispute.

It's Cassell's views on Miranda and the death penalty that provoke the most public controversy as well as the ire of defense attorneys.

"If he's correct and innocent people aren't being executed in this country, it's because we are so careful, it's because the appeals process is so laborious," said Ed Brass, a Salt Lake criminal defense attorney.

Brass, who has handled a number of capital punishment cases, said, "If we go back to the days of `one appeal and you're out,' there might be nothing standing in the way of an execution except for some sloppy law-yer-ing."

Brass also takes exception to Cassell's criticism of Miranda.

"It has not been a burden on police, unequivocally not," Brass said. "People rarely assert their constitutional right to remain silent. They do cooperate."

More over, police have, as Cassell himself noted, learned to live with Miranda and abide by its requirements, Brass said.

In cases where Miranda is violated, the courts simply exclude the defendant's statements, Brass said.

And if crime clearance rates suddenly dropped in the mid-1960s, it was probably due to something other than Miranda, he added. "You've got to look at the societal changes that were taking place. We were seeing the assassination of political figures, the Vietnam War, and society was becoming increasingly violent," he said.

Crimes with guns used to be rare, Brass said. "Today, everybody has a gun."

But Cassell insists his research did take law enforcement and societal factors into account and that critics can't offer any other explanation for the abrupt decline in the number of solved crimes after Mir-an-da.

Cassell's victims' rights crusade has drawn less open criticism from the legal community. However, some defense lawyers fear the injection of victim emotions might influence the fact-finding process, and some judges see it as meddling in their domain, Cassell said.

"In our view, however, third-party victims have a compelling interest in their case," Cassell said. "There is a void in victims' rights, but I don't see the courts stepping in to fill it."

The proposed constitutional amendment would, among other things, guarantee a victim's right to reasonable notice of all court proceedings and to not be excluded from those proceedings. It also says a victim is entitled to be heard regarding plea bargains and sentences, to receive notice of a defendant's release or escape from custody, and to restitution.

Cassell said a number of political sources, including the Congressional Quarterly, have called the victims' bill of rights the most likely amendment to succeed.

But he's not waiting for that to happen. Beginning next semester, Cassell will begin teaching one of the first law classes in the country dealing specifically with victims' rights. He is also preparing a textbook on the subject.

"There hasn't been much scholarly attention devoted to victims' rights," Cassell said. "I consider it my life's work."