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It will take years of litigation to determine the meaning and boundaries of Marsy's law, prosecutors and defense attorneys say.

"We’re going to start uncovering those scenarios where the rights of the defendant are getting trampled on by the implications of Marsy's Law," said Jackson Lofgren, president of the North Dakota Association of Criminal Defense Lawyers. 

Measure 3 — which added more than a dozen crime victims' rights to the state constitution — won handily on Tuesday with 62 percent of the vote, according to unofficial results, though it was opposed by the people charged with enforcing it, including police, prosecutors and victims' advocates. Similar measures also passed in South Dakota and Montana. 

Lofgren, a former prosecutor, said he expects defense attorneys to quickly begin challenging the measure in court, especially in misdemeanor cases and at bond hearings.

The constitutional amendment expands the definition of a victim meriting services to include victims of theft and other misdemeanors, and possibly witnesses to crimes. It also gives victims the right to be heard at all hearings relating to a person's release and sentence.

But bail hearings often happen just hours after an arrest, Lofgren notes. And many people accused of misdemeanors show up for their bail hearings and ask to plead guilty on the spot. 

Now, the question arises: What if the prosecutor can't get in touch with the victim before these fast-moving, critical decisions? 

"Those defendants are going to have to challenge, in state or federal court, that their constitutional rights are getting trampled on by the provisions of these vague Marsy’s Law provisions," Lofgren said.

Prosecutors see these potential issues, as well, and are waiting on guidance from court decisions about what to do.

"If we have a bond hearing in 15 minutes and can't get a hold of the victim, I don’t know how the court can proceed with the hearing," said Richard Riha, Burleigh County State's Attorney.

Riha is anticipating litigation over this, with different courts creating different rules around the state. He also expects the new provisions to slow the justice system and lead to defendants spending more nights in jail.

"Prosecutors will have to say, what have I all done to make sure notification went out and (find out) if the person wants to speak to me," said Aaron Birst, executive director of the North Dakota State's Attorney's Association.

In the longer-term, both groups anticipate legal battles around victims' new right to refuse information requests from defense attorneys.

If a victim says he or she does not want to give a deposition — relatively rare occurrences in criminal cases — a prosecutor may be in the position of having to fight for that in court.

McLean County State's Attorney Ladd Erickson noted that victims may also take their rights into their own hands, bringing ethical and legal complaints when they think their rights have been violated.

"You have those kind of people that will use the things in Marsy’s Law as a sledgehammer," he said, taking advantage of their new found rights to launch complaints against judges and prosecutors.

Kathleen Wrigley, chairwoman for the measure and the wife of Lt. Gov. Drew Wrigley, said Tuesday that she believed a constitutional amendment was the answer to laws protecting victims that are "arbitrarily ignored."

"There have been so many victims that have told me their stories about not being heard at sentencings or parole hearings," she said. "They are afraid and they want their voice to be heard."

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Wrigley contends the new rules are clear, concise and tailored to North Dakota.

"The discretion of law enforcement, defense attorneys, prosecutors and judges is not at all diminished or compromised by Marsy’s Law," she said. "The right to be heard doesn’t mean or equate to the right to be believed, of course not."

As it stands, Marsy's Law is set to go into effect on Dec. 8 — and many in law enforcement and victim services are scrambling.

A number of state's attorneys held a conference call Wednesday afternoon to discuss next steps, Birst said. As a start, they will begin printing flyers and cards to give victims about their rights.

On Wednesday, the attorney general is hosting a meeting of prosecutors and law enforcement to discuss more substantial changes, he said.

Riha said he began outlining a new plan for Burleigh County the day after the election. Fast notifications for victims of misdemeanor crimes is one of his most pressing concerns. The city attorney does not have his own victim advocate, and he said he may need more staff to shore up the new demands.

"We don’t have the manpower," he said. "We might have to make it up as we go along."

Darla Juma, president of the North Dakota Victims Assistance Association, said her group also will meet this week to figure out next steps.

And Burleigh County Sheriff Pat Heinert, who appeared in TV ads in favor of the measure, said he is developing a "Marsy's Card" with victims' rights outlined. Officers will be required to hand the card to crime victims and may undergo additional training on how to treat victims.

But he's less worried than the attorneys. For officers interacting with crime victims, "It’s going to add minutes; not a lot of time,” he said.

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Reach Caroline Grueskin at 701-250-8225 or at caroline.grueskin@bismarcktribune.com

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