January-February 2014

Care for the victims of DWI

W. Clay Abbott

TDCAA DWI Resource Prosecutor in Austin

In this job one eventually tires of sending search warrants, discussing Missouri v. McNeely, and explaining drug levels in blood samples—but occasionally I am forcefully reminded of how deeply these things matter. I had one of those moments when I read the article, “Chilli’s story will warm your heart” by Allenna Bangs, an ACDA in Tarrant County, in the September-October issue of this journal. If you have not read it, you should pause now and check it out in that edition or online at this link. (Click to be redirected.)
    That story helped even me remember why we do what we do. The most innocent and random victims we serve are so often found in impaired-driving cases. What came to me reading that story is how much good came from the simple device of the Victim Impact Statement (VIS). The case was pled out to the satisfaction of all parties; it was not resolved by strenuous courtroom presentation. But thanks to one brave little girl and a prosecutor’s office that heard her, her story was so much more than the resolution of a criminal case.
    Prosecutors are often accused of ignoring the Victim Impact Statement, but I am not sure this is a fair accusation. Many victims understandably don’t want to re-live the traumatic events of the crime and do not (will not) engage in what can only be an incredibly difficult endeavor for them. But as Chilli’s case shows, sharing a VIS can be healing, informative, empowering, and educational, sometimes for the whole community. Prosecutors should do everything in their power to make sure victims know how to fill out Victim Impact Statements and make the process as simple as possible.
       The 83rd Legislature, responding in part to criticism of prosecutors underutilizing this important process, passed SB 1192 and SB 213, amending Article 56.03 of the Code of Criminal Procedure, which governs Victim Impact Statements. The first act made some clean-up corrections and clarified that there is no official form required of victims to avail themselves of this process. A new model form is now available on the TDCJ website, but the clear goal of the law’s change was to inform prosecutors that they should use what they get and not adhere to legal formality. (If you need a perfect example of how powerful these statements are regardless of their format, go back to the original article and re-read Chilli’s heart-wrenching, hand-written letter she titled, “From one of your victom [sic].” Really, who cares what form her VIS was on?)
    The second act requires the court to determine whether the prosecutor received a VIS before sentencing. It also took out the middleman and requires the prosecutor, not the court, to send a copy of the VIS to probation in probation cases. When I was out doing Legislative Updates last summer, I heard from many of you how these changes added effort to our already-full plates. But how wrong would it be if anyone connected with deciding the defendant’s sentence did not have access to that VIS?
    Not every VIS will be as touching and true as Chilli’s short note. So what? What matters is that all victims deserve to be heard, if even for a moment. Every crime victim has the right to be considered by prosecutors, judges, parole boards, probation officers, and even by the defendants who victimized them in the first place. To actively or passively silence that voice is unjust, and our duty is always and only to see that justice is done. Sometimes we may not agree with the message, but again, so what? We stand for the truth, whatever it may be, and we should never flinch from it.
    I won’t spend time here going line by line through Article 56.03 and the process of the Victim Impact Statement. But if you are unfamiliar with it, I promise it is only a five-minute read, and you cannot see that justice is done without understanding it. Set this article down and go take a look at that part of the Code of Criminal Procedure.
    I have two other victims’ issues that continue to come up on a regular basis that I want to mention.
    First, victims of simple DWI—those suffering “only” property damage or bodily injury—often fall through the gaps of an overtaxed and chaotic misdemeanor docket. The biggest issue is that they are often not named in the information because their property damage or injury does not enhance the offense or constitute an element of the offense, making them easy for prosecutors to miss. While property damage will not qualify someone as a crime victim under Chapter 56 of the Code of Criminal Procedure, those who suffer bodily injury are. Yet both are frequently overlooked in a misdemeanor case. We often wrongfully believe that insurance covers all of their expenses and needs, but that is not necessarily true. Plus, insurance can’t possibly cover the shaken peace and dignity (recognize that phrase?) of someone who comes bumper to bumper with an impaired driver. And although property-damage survivors are not victims by law, they can be a valuable tool in the prosecution and disposition of a case, as they were on the scene with the defendant.
    Prosecutors and their staff must be diligent to identify these oft-overlooked victims and be willing to give them a voice. While it is clearly true we may not be able to get them everything they want or even deserve, what we must provide is the opportunity to be heard. Police reports and our office policies and procedures (both official and unofficial) must be studied carefully to avoid inadvertent injustice. Like burglary victims, these DWI survivors often have damages that are non-economic. The randomness and violence of impaired driving crashes often affects more than our bodies and automobiles.
    The second issue is that some crashes have a whole bunch of victims. This is not unique to impaired driving cases, but it is an all-too-frequent event. Special care must be taken to include all of those harmed and all of the family members of those killed or seriously injured. While the statutes are helpful in sorting out who has statutory and constitutional rights, it remains axiomatic that prosecutors represent the people—all of the people. We sometimes fail here. When we do, it is unjust.
    I have two suggestions. First, hold a meeting with everyone whom you can contact and certainly everyone who has contacted you—they should all be invited, and conduct the meeting at a point in the process where you can actually answer most of their questions. Let everyone hear you at once; sometimes prosecutors are unfairly criticized for saying things over the gossip party line. And remember that with many victims, there are many points of view. But having a chance to hear what the prosecutor has to say and to be seen and be heard helps people process their grief and emotional trauma. Trust is shattered in these most random of crimes, and by giving them a voice, the justice system helps to rebuild it. Again, we serve the truth, and what we do is transparent. Be careful not to violate privacy laws or due process, but be as open as you ethically can. The more they know and understand the process, the more apt they are to be on-board with your difficult decisions when there are evidentiary issues. Not everyone will be happy with you, but if that were your goal in life, you have already made a tragic career miscalculation.
    At that meeting, create an e-mail list, and from then on out, send all basic communications to the people on that list. With modern technology, this is actually a time-saver. And nothing says “I care” like an e-mail from the local prosecutor’s office. (I know that prosecutors care, but sometimes we need to show it.)
    So many of us, day in and day out, prosecute DWI cases, and most never get an award or even a thank-you letter. But we know that because we do a hard job well, unknown members of our community will make it home one night safe and sound. That is why we do what we do. And on behalf of those folks who will never be the victim of an impaired driving crash, thank you.