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Colorado’s Victim Rights Act leaves some crime victims without protection

Michael Bird intended to see the court case through after he was punched in the face during an argument with a neighbor last year.

The neighbor was arrested and charged with assault under Englewood’s municipal ordinances. When Bird tried to attend the first hearing in Englewood Municipal Court, he found out it had been rescheduled. He would be informed of the new date, he was told.

But he never heard another peep from anyone about the case, he said, until March, when he found out the charges had been dropped and the case dismissed at the request of the prosecutor.

“I was dumbfounded,” he said. “The fact that I wasn’t notified at all, that I had no voice in what proceeded with this, it left me feeling revictimized.”

Under Colorado law, victims of some crimes are guaranteed certain rights during the court process. Those victims are entitled to be notified of key hearings and to have a chance to weigh in on a prosecutor’s decision to offer a plea deal or otherwise resolve a case. They also have the right to be told about scheduling changes or cancellations, among numerous other protections. Victims who feel they’ve been mistreated can file a complaint that is investigated by state officials.

But the Victim Rights Act only applies to certain crimes charged under state law, and does not cover municipal courts, where crimes are prosecuted under local ordinances. At that level, officials can choose to follow the guidelines, but are not mandated to provide any rights to victims.

That leaves an entire swath of crime victims in Colorado without the protections afforded others, and with no recourse or avenue to file a complaint if they feel they’ve been mistreated.

When Bird asked the Englewood City Attorney’s Office about his case, he was told it was dismissed because the prosecutor could not get in touch with him, he said. It turned out that there had been a typo in his phone number in their records, he said, although police and a victim’s advocate had his correct information.

Had the municipal case been under the purview of the Victim Rights Act, the prosecutor’s decision could have been a violation because the charges were dismissed without contacting Bird, said Kimberly Branham, Victim Rights Act specialist at the Colorado Division of Criminal Justice, which oversees the complaint process.

“If that happened in a district court setting, there are a few things our subcommittee would look at,” she said. “…They would look at how many attempts, and what kind of attempts the district attorney’s office made to locate the victim… Did they make one phone call and find out it was wrong and that is all they did? Was there an address in the file? Was there an email address, or is there something in the file that might have had a different number?”

Englewood city officials did not return requests for comment on this story.

Generally, prosecutors should make at least three attempts to reach a victim, said Nancy Lewis, executive director of the Colorado Organization for Victim Assistance.

“The gold standard is you try to contact someone three times,” she said. “But who knows if we have the ability to do the gold standard all the time. You want that to happen. You want crime victims to have their say.”

“Based on system change”

The Division of Criminal Justice last year received 43 formal complaints from victims who believed their rights were violated during the court process, according to data provided by the division. Branham estimated the agency also received about 160 informal complaints that were resolved without going through the formal process.

Once a formal complaint is made, division staff gather information from both the victim and the agency that is accused of the violation — sometimes that’s court staff, or the district attorney, or law enforcement — and then the case is reviewed by a subcommittee of seven people, who vote on whether a violation occurred.

If a victim’s rights were violated, then division staff can take a variety of remedial measures, like holding additional training for the agency, facilitating a meeting between the victim and the agency or requiring the agency to update its policies.

Staff can’t, however, require that hearings be re-done, plea offers be adjusted or charges be refiled — that’s not in the purview of the Victim Rights Act, Branham said. Staff also can’t get someone fired or remove a judge from the bench. Instead, they focus on stopping the problem from repeating.

“We are based on system change, so what we really want to do is make sure this doesn’t happen again to another victim in the future,” Branham said.

Most agencies will work to fix the identified problem, she said. If an agency refused, the case could be passed up to the Colorado Attorney General’s Office for review.

Of the 43 complaints filed in 2020, the subcommittee found violations in five cases and found no violations in 11 cases. Another 17 cases are still pending, and 10 cases were not reviewed because they did not fall under the Victim Rights Act or were clearly not a violation, according to the provided data.

Branham said victims whose cases were in municipal court routinely seek to file complaints.

“We do get a lot of victims who feel their rights have been violated at municipal court and we do explain to them that (municipal courts) don’t have to follow that,” she said.

“Treated with fairness”

Lewis said that many municipalities do voluntarily strive to follow at least the general tenants of the Victim Rights Act.

“You have the right to be treated with fairness, dignity and respect, and that should happen in every court situation, always,” she said.

In an ideal world, she’d like to see the protections of the Victim Rights Act mandated for municipal courts, but doing so would require municipal courts to hire more staff and shift resources, a tough sell during pandemic-related budget shortfalls.

Part of what allowed lawmakers to get the Victim Rights Act passed in 1993 was the fact that municipal court cases were excluded, she said.

“There were compromises made, and that is one of the compromises, that municipal courts wouldn’t have to do this, because we wouldn’t have the resources,” she said.

For Bird, that means a typo was able to make an already difficult situation harder. His neighbor is threatening to file a lawsuit, he said, and seems emboldened by the case being dropped. Bird has called police and prosecutors to express his concern, but has been passed around, he said.

“Nobody has helped me,” he said.

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