Teri Nicolai speaks at an event supporting Marsy's Law for Wisconsin(Photo: Courtesy of Marsy's Law for Wisconsin)
A flood of advertising on social media and television is backing a proposed constitutional amendment as a way to cement the rights of crime victims in Wisconsin,but opponents are raising red flags about the damage the measure could do to the state's criminal justice system.
Marsy's Law, as the amendment is known, will appear on the April 7 ballot for voters across the state.The amendmenthasalready been approved by the state Senate and Assembly twice, in 2017 and 2019, and is now up for voters to decide.
Voters may have seen or heard ads running on TV, radio and social media aired by the well-funded campaign. Marsy's Law for Wisconsinspentmore than $128,000 on Facebook ads alone between March 19 and 26, according to the site's ad library report. The campaign is in the top 20 of spenders on ads for Facebook in the U.S., the report shows.
The Wisconsin Justice Initiative, one of the strongest opponents, has spent less than $200 on its opposition since September of last year.
Groups like the Wisconsin Justice Initiative and the ACLU of Wisconsin have sharply criticized the amendment. They say victims' rights are already protected in state law and that the wording on the ballotmay be misleading to voters. The proposed amendment, they say, would bog down the legal process and pollute the system by inappropriately inserting victims as a third party to the prosecution and defense in a criminal case.
Marsy Nicholas(Photo: Courtesy of Marsy's Law for Wisconsin)
The amendment stems from the killing of Marsy Nicholas in California in 1983. She was murdered by an ex-boyfriendwho had been stalking her.A week after her death, the ex-boyfriend confronted Nicholas' family in a grocery store,at a time when they did not know he had been released on bail.
Marsy's Law has been nationally championed by her brother, billionaire Henry T. Nicholas III. Nicholas is the former CEO and co-founder of the technology company Broadcom Corp.
The amendment is similar to others that have been passed in Illinois, California, North Dakota and South Dakota, along with several other states. Montana also passed the amendment, but it was overturned in 2017 because of issues with the way the question was posed to voters, according to the Bozeman Daily Chronicle.
In Wisconsin, the amendment would afford 16 additional rights to victims, according to the Marsy's Law for Wisconsin website, including the right to be treated with respect, the right to privacy, proceedings free from unreasonable delay, notification of proceedings, ability to confer with the attorney with the government, and the right to be heard during any proceeding, among others.
Teri Nicolai is shown in 2004 during her recovery from the brutal kidnapping at the hands of her ex-husband.(Photo: Jack Orton / Milwaukee Journal Sentinel)
Teri Nicolai, who was brutally attacked by her ex-husband in 2004, is a high profile proponent who appears in ads flooding the market in Wisconsin.The victim of a violent crime herself,Nicolai said that had Marsy's Law been in effect when she was going through the Wisconsin court system in 2004, she may have had a bigger say in whether or not her ex-husband should go to a trial instead of taking a plea deal.
The details of Nicolai's ordeal were horrifying.
Nicolai went to pick up her two daughters from her ex-husband's house
and when she arrived, Larsen told her that they were hiding inside the house, waiting for their mom to find them.
When Nicolai stepped through the door into the house, her ex-husband, David Larsen, attacked.
"He came up behind me and beat me over the head with a baseball bat," she said.
He removed some of her clothes and put duct tape around her wrists, ankles and head. He stuffed her socks in her mouth, Nicolai said.
"From there, he put me in a large Rubbermaid garbage container," she said.
Larsen filled the container with snow and drove the container from Racine to a storage facility in Illinois, near where he worked.
After being rescued the next day, Nicolai was taken to the hospital, where she found she had miscarried. Doctors did what they could to fight the extreme frostbite on her extremities, but ended up having to amputate all 10 of her toes.
After recovering, Nicolai watched as the case against Larsen made it through the Wisconsin justice system. She was disappointed when she found out that he was going to accept a plea deal for 35 years in prison, instead of having to go through a trial and be found guilty.
"I wanted him to answer for what he did," she said.
Nicolai did eventually see justice, she said, when Larsen was charged with several federal crimes because he took her across a state borderwhen he left her in the Illinois storage unit. He was sentenced to life in prison.
Opponents of the amendment acknowledge the impactof experiences like Nicholai'sbut say the powergiven to victims and making them into a third partyduring the legal process in addition to the defense and the state and extending the time it takes to see a case through damages the legal process.
"A party in a legal case is a person or entity whose rights are being decided, said Dennis Grzezinski, a lawyer representing the Wisconsin Justice Initiative.
Several times, opponentslike the ACLUof Wisconsin and the Wisconsin Justice Initiative have tried to stop the amendment.In December, Dane County Circuit Judge Frank Remington ruled that the question would remain on the ballot after a lawsuit was brought forward trying to stop it. Those challenging the referendum decided not to appeal the decision of the judge, and will instead argue that the amendment should not take effect if voters were to approve it.
The strongest opposition of the amendment has come from the Wisconsin Justice Initiative, which has gone as far as adding a "Marsy's Flaws" tab to its homepage, with information about the amendment.
"It's a really bad idea. It amounts to a wholesale alteration of our criminal justice system," Grzezinskisaid
He said that though there are some portions of Marsy's Law that are workable and even good ideas, other parts could be harmful to the state's justice system.
He worries about the time that trials could take if victims ask to be heard along every step of the way, the cost to the system to accommodate lengthier trials, the ability of victims to request an appeal be heard by the state Supreme Court, the ability to refuse discoveryand the loss of a defendant's rights, among other concerns.
Grzezinski said that the amendment fails to acknowledge that Wisconsin already has victims' rights in the constitution.
"The amendment ignores that Wisconsin was the first of 50 states to include in its own constitution a series of victims' rights," he said. "It ignores the fact that the rights have been doing a very good job."
The Initiativeis also concerned over the wording of the amendment as it appears on the ballot:
"Additional rights of crime victims. Shall section 9 m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require the rights of crime victims be protected with equal force to the protections afforded the accused while leaving federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?"
Grzezinski said that the question doesn't do enough to explain to voters what they are specifically approving.
"Who could oppose creating and enlarging the rights of victims?" he said. "That's essentially what the question tells the public. That question misrepresents what these changes will do. It expands 16 different categories of rightsand creates duties and requirements for law enforcement, prisonsand judges."
And as for all the money the group has been spending on advertisements, Grzezinskiisn't surprised that it's so high.
"One questionthis raises is whether the contents of the Wisconsin Constitution are simply up for sale to billionaires," he said.
Asma Kadri, a staff attorney with the ACLU of Wisconsin, said that the protections offered by the state and federal constitutions don't need the addition of Marsy's Law which may only serve to muddy the already complicated waters of the justice system.
"We believe it causes more harm than good," she said.
Kadri said that the waythe amendment is written poses more questions on how it will be enforcedand that other states that have enacted the law have struggled with enforcement, too.
"It's hard to determine how it will be implemented," she said.
In Florida, Marsy's Law was enacted about 15 months ago, said Barbra Peterson, the president of the Florida First Amendment Foundation, and since then it's caused a slew of problems.
One of the bigger ones has been access to information from police agencies, who are using Marsy's Law to curtail the flow of information to the public when a crime is committed. In one case, Peterson said, an officer got into an altercation with a suspect, and the officer ended up shooting and killing the suspect.
Under Marsy's Law, the department decided not to release the name of the officer involved, saying that he or she was a victim in the case.
In another case, a neighborhood woke one morning to find a car in the middle of an intersectionwith a decapitated body next to it. Under Marsy's Law, the department wouldn't release any information not the names of the victim or suspects, what took place orwhere it took place despite the fact that neighbors discovered the scene, Peterson said.
"Law enforcement agencies around the state are interpreting Marsy's Law and applying Marsy's Law in any way they think they should," she said.
And the unequal way that it's been applied throughout the state raises a lot of concerns, Petersen said. Some departments are still releasing information, while others release little to none.
"If I live near a city park and a 911 call goes out because a crime occurs in the park, what I find out depends on who responds to the call," she said.
There's also concern over law enforcement agencies using the law to prevent the release of names of officers involved in shootings or who are being internally investigated.
"Law enforcement officers have extreme power, they can arrest you," she said. "It's important to know people with that level of authority are acting within procedures, and when they don't, to know that steps to make sure this doesn't happen again are being taken."
Petersen said that people should push for interpretations to be put in place on the law.
"People need to know what they're voting for. Everyone wants to protect the victimbut also have to retain the ability to oversee law enforcement," she said. "And that's what we've lost with Marsy's Law."
Aside from the sharp criticism the amendment has received in Wisconsin, there is still a large base of supporters.
The Marsy's Law for Wisconsin website has a page dedicated to showcasing those who endorse the amendment, including Wisconsin Attorney General Josh Kaul. Sheriffs from across the state, as well as police chiefs are also listed as supporters, alongside district attorneys and mayors of several cities.
"We must do all we can to protect victims of crime. Im in favor of Marcys Law, and I believe we need to do more to assist law enforcement and victim advocates with the critical work they do to support victims," said Kaul, according to a release on the Marsy's Law website.
Myranda Tanck, communications director for Marsy's Law for Wisconsin, saidpassing the amendment in Wisconsin is a natural next step for the state, after the original passing of the Crime Victims' Bill of Rights in 1993.
"Passing Marsy's Law sends a strong message to victims that the system is on their side, and will allow them to enforce their rights in the courtroom, while not taking away any rights from the accused," she said.
If the amendment were to pass April 7, residents of Wisconsin would see a change in the protection of victims right away, she said.
"Victims will be able to invoke the State of Wisconsins Constitution to secure all of their rights as they navigate the difficult legal process, rather than see the rights of the accused automatically trump their own rights."
The accused would still be protected, too, Tanck said.
"The accused still has federal rights," she said.
Tanck also hopes that the passing of the amendment would encourage more victims of crimes to come forward like in the case of sexual assaults,which are more likely to go unreported.
"We have found in speaking to survivors that still too many victims are afraid to come forward. They fear for their safety and reputation," she said. "That's what we hope to curtail."
But the most important argument for the passing of the amendment is the fact that it will be able to help so many people.
"The adoption of this amendment will have a lasting positive impact on victims in the Badger State for generations to come," Tanck said.
RELATED: The April 7 election is still set to take place. Here's what we know so far
RELATED: How to get an absentee ballot in Wisconsin during the coronavirus outbreak
More information about Marsy's Law, and the text of the full amendment are available at http://www.equalrightsforwi.com. Information about arguments against the amendment are available at http://www.wjiinc.org.
Laura Schulte can be reached email@example.com and twitter.com/SchulteLaura.
Our subscribers make this reporting possible. Please consider supporting local journalism by subscribing to the Journal Sentinel at jsonline.com/deal.
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