John Hult, South Dakota Searchlight
A defense attorney request for the diary of an alleged rape victim was the focus on Wednesday in a South Dakota Supreme Court case that tackles the limits of a billionaire-backed, voter-approved victims’ rights amendment to the state constitution.
Marsy’s Law passed in 2016, enshrining a host of victims’ rights into South Dakota’s founding document, among them the right to prevent the disclosure of information that “could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information about the victim, and to be notified of any request for such information or records.”
The campaign to pass Marsy’s Law was bankrolled by California resident Henry Nicholas, the billionaire founder of Broadcom, whose sister was murdered in 1994. He bankrolled several similar amendment campaigns in other states, as well.
In its original form, rights in the amendment were extended to spouses, parents, grandparents and relatives. Voters agreed to adjust the amendment in 2018, limiting that broad definition of “victim” in most cases aside from homicide. The 2018 change also allowed the Legislature to create laws to refine the application of Marsy’s Law.
Those voter-backed changes, however, did not undo a victim’s right to say “no” to defense lawyers who seek private information.
Wednesday’s Supreme Court oral arguments on the campus of Aberdeen’s Northern State University became the venue for a case that could refine the limits and application of that right to privacy for victims.
The alleged victim was identified by the initials “E.H.” at the hearing and in the associated legal filings. A lower court judge had ordered her to deliver her diary for review based on a defense lawyer request, but she filed an intermediate appeal, a legal maneuver that asks the high court to review a judge’s decision before a trial.
The justices pressed attorneys for both sides on several questions, including whether Marsy’s Law affords her the right to file such an appeal, whether she’d given the proper notice to file one, and whether her right to privacy is outweighed by the right to confront one’s accusers as guaranteed by the Sixth Amendment to the U.S. Constitution.
Lawyers for victim: Privacy rights ‘absolute’
Jeremy Lund, the Aberdeen lawyer representing E.H., led with a nod to factors he and Assistant Attorney General Chelsea Wenzel would home in on throughout the arguments.
“We’re here today because the defendants in a child sex abuse case want to read the victim’s diaries, after they have already received her medical records, psychological records and one of her diaries, and shared that information with an internationally closed religious society,” Lund said, a nod to the alleged perpetrators’ membership in a Hutterite Colony.
Lund and Wenzel would both go on to argue that the order for the release of 13 years of diary entries was overly broad and invasive, particularly in light of the information already in the court record and the establishment of Marsy’s Law rights by voters.
The Attorney General’s Office joined in E.H.’s intermediate appeal just after the filing deadline, Lund conceded. Even so, he said, that issue is minor and ought not dash her hopes of protecting her privacy.
But Justice Patricia DeVaney said Marsy’s Law doesn’t include the word “appeal,” nor does it specify the rules for such an appeal. A petition for intermediate appeal must be filed in 10 days, for example, but other areas of the law offer a 30-day notice for appeals.
Lund offered a few options there, but stressed that Marsy’s Law is explicit enough in its protections to both require an appeal right and give the state Supreme Court the ability to make the call on its appropriateness.
The lack of a statute tying Marsy’s Law to a specific set of procedural rules doesn’t change that, he said.
“The victim has an absolute privilege to not disclose information or produce discovery pursuant to a defendant’s request,” Lund said. “There are no exceptions to the right to refuse a discovery request.”
Justices DeVaney and Mark Salter pushed both Lund and Wenzel on the issue of absolute rights.
“How does that differ fundamentally from, let’s say, the Sixth Amendment right of confrontation that says the defendant has a right to have confrontation at trial, and there are no exceptions?” Salter said. “And yet the cases are legion in recognizing that it is not absolute.”
Wenzel said the answer is found in comparing South Dakota’s version of Marsy’s Law with those found in other states. Many states include exceptions for a victim’s right not to disclose information. South Dakota does not.
“They provide exceptions or they say, for instance, the section is not intended and may not be interpreted to supersede a defendant’s rights,” Wenzel said. “We don’t have any of that.”
Defense: Diaries important for defendant rights
Defense lawyer Tim Whalen argued that the issue is not complicated. The language of Marsy’s Law contains no mechanism for a victim to file an intermediate appeal to South Dakota’s highest court, he said, nor has the Legislature defined one.
“On the jurisdiction, you either have jurisdiction or you don’t,” Whalen said. “You cannot create it out of thin air.”
Even if he were to concede that the Supreme Court is the proper venue, Whalen said, E.H. failed to follow the state’s existing steps for appeals.
“You still have to follow the rules,” Whalen said.
Whalen also stressed the importance of the diaries to the defendants’ case. When considering a defendant’s request for information, courts often use a “Nixon test,” which stems from a U.S. Supreme Court decision on when privileged information – presidential records, in former President Richard Nixon’s case – can be released.
Under that test, a request for privileged information must be relevant to the case, admissible in court and specific.
Lund and Wenzel pointed out that the judge who ordered the diary entries released did not apply a Nixon test. Had he, Whalen argued, the request for diary entries would’ve satisfied it.
Mark Waldner, Michael Waldner Jr. and Michael Waldner Sr. say they are “100% innocent,” Whalen said, and there is no physical evidence of sexual assault or DNA evidence to prove the crimes.
The victim’s mental health records, he said, suggest “she’s prone to fantasy, prone to fabrication, she hallucinates, she doesn’t have a complete touch of reality.”
“That goes directly towards her credibility on whether or not she fantasized the circumstances,” of the yearslong pattern of sexual assault alleged in the case, Whalen said.
The Division of Criminal Investigation’s report on the case references “purple journals,” Whalen said, and includes quotes from specific, dated diary entries.
But, DeVaney asked, “where in the DCI report, or the page of the journal that’s in the record, does it support your suggestion that all these other journals or diaries, if they exist, also talk about the allegations in this case?”
Whalen said the DCI report talks about the victim “dealing with” the trauma of the assaults.
In their rebuttal, Lund and Wenzel both said there must be a limit to what defendants can ask for.
“The right to confront and cross examine does not include the right to cross examine in any way, shape or form you want,” Lund said.
Wenzel, hearkening back to opening arguments, told the court that the defense’s sweeping request for diary entries not only violates the spirit of Marsy’s Law, but counts as unnecessary in light of the personal information already offered to defense counsel.
“They have all of her medical records, her counseling records,” Wenzel said. “What could be in these journals that’s going to tell them about her mental health better than her mental health records and her counseling records?”