The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
The Government petitioned for the pre-trial detention of
Defendants James and Michael Marcello. During the hearing on its
motion, the Government sought leave for a victim of Defendants'
alleged crimes to offer an oral statement opposing their release.
I prohibited the statement though I welcomed a submission in
writing. My decision to deny the victim an opportunity to speak
in open court was based on the clear language of a recently
enacted statute granting victims an opportunity to be "reasonably
heard" at detention hearings. I found that the statute, which
contains both a reasonableness requirement and a legal term of
art (the opportunity to be "heard"), does not require the
admission of oral statements in every situation, particularly one
in which the victim's proposed statement was not material to the
decision at hand.
In October 2004, Congress passed legislation expanding the
scope of rights afforded to both crime victims and those accused
of criminal activity. As codified in 18 U.S.C. § 3771, the "Crime
Victims' Rights" component of the legislation included the right
"to be reasonably heard at any public proceeding in the district
court involving release, plea, sentencing or any parole proceeding." 18 U.S.C. § 3771(a)(4).*fn1 The statute clearly
designates that the right to be heard by the Court is held by the
victim, who may assert the right without motion by the
Government. 18 U.S.C. § 3771(d)(1) ("[t]he crime victim or the
crime victim's lawful representative, and the attorney for the
Government may assert the rights . . ."). Congress further
emphasized the importance of the right by providing that an
adverse ruling by the trial court may be reviewed by mandamus and
that the appellate court is required to decide the question
within 72 hours after the petition is filed.
18 U.S.C. § 3771(d)(3). The policy decision underlying the statute is, of
course, not mine to accept or reject. It is a matter left to
Congress.*fn2
At issue in this case is the extent to which Congress provided
a right for crime victims to make oral statements to the Court
during the course of a criminal prosecution, considering both the
nature of this hearing and the likely content of the
victim-witness's statement. The Government contends that under the terms of the statute, I was
required to hear the oral statement of one of the victims of
Defendants' alleged crimes.*fn3 Defendants are alleged
members of a criminal organization (the "Chicago Outfit"), and
the victim who wished to speak was the son of a man allegedly
murdered as part of the conspiracy in which Defendants allegedly
participated.*fn4
A critical question in deciding whether to allow the victim to
speak at Defendant's sentencing hearing was whether the victim
could have said anything that would be material to the decision
to detain or release Defendants. The sole subject of the hearing
at which the victim sought to make an oral statement was the
detention of Defendants' pending trial. Prior to the detention
hearing Defendants entered a plea of not guilty. The trial is yet
to be held and quite obviously there is no sentencing proceeding
on the horizon.
Therefore there were at least three matters to which the
victim's statement might have been relevant or material at the
detention hearing: the strength of the case against Defendants,
the seriousness of the crimes they are alleged to have committed,
and the reasonable apprehension of personal danger to the victim.
The murder of the victim's father occurred more than twenty years
ago. According to the Government, the victim has no personal
knowledge of any fact that would tend to show whether or not Defendants are guilty of the charged
offenses.*fn5 Moreover, there is no doubt as to the
seriousness of the crimes of which Defendants are accused and
particularly the one about which the victim would testify:
murder. Finally, there is no claim that the victim's welfare
would be endangered by Defendants if they were released.
The victim has been given an opportunity to state in writing
what he might say that would be relevant or material to the issue
of Defendants' detention so that I might learn whether there is
something more to his statement than what the Government has
suggested. Were there something more, I would hear his oral
presentation. No written statement has been delivered to me. The
Government nonetheless maintains that I must hear an oral account
of the victim's views even if they would have no bearing on the
decision presently before me.
The Government bases this extraordinary argument on language
found in the statute's rather limited legislative history.
Because I find the statute's language to be clear, I do not find
it necessary to turn to the legislative history to discern the
meaning of the statute. See Estate of Cowser v. Commissioner,
736 F.2d 1168, 1171 (7th Cir. 1984) ("[i]t is a common rule of
statutory construction that when the plain language of a statute
is clear, courts need look no farther than those words in
interpreting the statute") (citation omitted).
As I noted earlier, the relevant section of the statute
provides crime victims with the right "to be reasonably heard at
any public proceeding in the district court involving release,
plea, sentencing, or any parole hearing." 18 U.S.C. § 3771(a)(4). The
statute clearly and unambiguously grants crime victims the right
to be reasonably heard. The plain language of the statute does
not mandate oral presentation of the victim's statement. While
the word "heard" does imply oral presentation in ordinary
English, it does not have that meaning in courts where it is a
term of art.
Being "reasonably heard" in the ordinary legal and statutory
meaning typically includes consideration of the papers alone.
See, e.g., Aoude v. Mobil Oil Corp., 862 F.2d 890, 894 (1st
Cir. 1988) ("a matter can adequately be `heard' on the papers" if
"given the nature and circumstance of the case . . . the parties
ha[d] a fair opportunity to present relevant facts and arguments
to the court"); see also Commodity Futures Trading Com. v.
Premex, Inc., 655 F.2d 779, 783 n. 2 (7th Cir. 1981) (explaining
that district court's refusal to grant an evidentiary hearing was
not a denial of due process when documentary evidence was
sufficient).*fn6 Motions are routinely heard and decided on
paper; most matters in open court are heard on papers
supplemented only by the arguments of counsel. The use of terms
of art does not strip otherwise unambiguous statutory language of
its clear meaning.
[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of
centuries of practice, it presumably knows and adopts
the cluster of ideas that were attached to each
borrowed word in the body of learning from which it
was taken and the meaning its use will convey to the
judicial mind unless otherwise instructed. In such
case, absence of contrary direction may be taken as
satisfaction with widely accepted definitions, not as
a departure from them. Morisette v. United States, 342 U.S. 246, 263
(1952). I conclude that the statute requires only
that a victim be reasonably heard, and that
Congress's use of that term of art does not require
that a trial court accept oral statements in all
situations.
Congress could have granted victims a specific right to speak,
rather than to be reasonably heard. Congress imposed just such a
speaking requirement in Fed.R.Crim.P. 32, which commands the
court to "address the defendant personally in order to permit the
defendant to speak." Fed.R.Crim.P. 32(i)(4). No such
requirement appears in the language of § 3771. The only possible
source of support for the Government's argument that I must hear
the victim speak in open court is the statute's legislative
history, the yoke upon which the Government placed the weight of
its argument during the detention hearing.
This case offers a textbook example of the risks in turning too
quickly to legislative history when seeking the meaning of a
statute. First, little legislative history exists. The relevant
sections of the bill appear to have sailed through both the House
of Representatives and Senate without serious committee review or
floor debate. Second, the only legislative history addressing the
provision at issue in this case consists of the statements of the
bill's primary author and the minority co-sponsor.*fn7
Nowhere in the legislative history provided by the Government
(nor found independently) does one find the debate or exchange of
ideas that more frequently accompanies the art of law-crafting.
Third, I observe that the bill's overwhelming support (and here I
reiterate its title, the "Crime Victims' Rights Act") on its first vote in
the Senate offers no further insight into the meaning of any
specific provision within the bill, including those employing
legal terms of art such as the right to be "reasonably
heard."*fn8
These observations about the value of the statute's legislative
history do suggest a third, policy-based justification for
concluding that the statute does not mandate consideration of
this victim's oral statement at the detention hearing. Through
the Crime Victims' Rights Act, Congress sought to balance the
rights of the victim against the right of the defendant in the courtroom.*fn9 But the scales are not as unbalanced as the
Government would have me believe. Given changes in the Federal
Rules of Criminal Procedure, victims have a right to speak in
open court in a manner analogous to the defendant's personal
right of allocution at sentencing. See Fed R. Crim. Pro.
32(i)(4)(A)-(B). Today, both defendant and victim have the right
to speak without being sworn as a witness before sentence is
passed. Id.
Further, a defendant's right to speak in court is not without
serious constraints. First, the defendant's right to speak in
open court, without being sworn as a witness, arises only on the
occasion of sentencing. Id. Second, this right is not absolute.
See, e.g., United States v. Tidwell, 178 F.3d 946, 950 (7th
Cir. 1999) (Ripple, J. dissenting) (observing that the right of
allocution is not without constraints and noting that "the courts
of appeals have been required to delineate those resentencing
situations in which policies embodied in the right of allocution
are at stake and those in which its invocation would be
superfluous").*fn10 Moreover, when a defendant seeks to
testify as a witness, he or she has the absolute right to decide
personally whether to testify but the testimony is limited to
matters which are relevant and material and about which the
defendant is competent to testify. See, e.g., Fed.R. Evid.
401-404. Given these limits on a defendant's testimony, the
Government's proposed reading of 18 U.S.C. § 3771, rendering oral
victim statements at detention hearings mandatory even when
immaterial, would hardly achieve balance between the rights of
victims and defendants. The problem I confront in this case rests on the far edge of
the territory of victims' rights, well beyond the mainstream of
victims' rights questions. While it is true that a victim's
statements will (at least at sentencing and prison release
hearings) almost always be relevant, material and spoken from
personal knowledge, this will not always be the case at hearings
on bond for a defendant who is, as Congress has mandated, clothed
with the presumption of innocence and against whom the victim can
offer ...