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KCBS Cover Story Pt. 3: California Crime Victims Rarely Invoke Marsy's Law Rights

SAN FRANCISCO (KCBS) - Crime victims rarely invoke the rights afforded to them under Marsy's Law, and California prosecutors often ignore those who do insist on the protections that law enshrines in the state constitution.

KCBS reporter Doug Sovern's investigation focused on the case of a San Francisco woman whose attacker was released from jail without her knowledge, despite threatening to attack her again.

What happened to the woman attacked outside Glen Park BART Station in July is strikingly similar to the 1983 case that eventually led to the passage of Marsy's Law.

Marsy's Law, Part 3

Jenny was surprised to discover the testimony she was preparing for a preliminary hearing in August would never be heard, because prosecutors had agreed to a plea bargain. She said she was not notified, as required by Marsy's Law, of the hearing where her attacker was set free on probation

"My voice was muted, no less my right to attend," she said. "I thought the justice system would certainly be on my side, especially as a victim."

Emails and phone logs reviewed by KCBS show that the San Francisco District Attorney's office was in frequent touch with Jenny and warned her that the felony charge would probably be reduced to a misdemeanor.

"We had been in contact with her and our prosecutors tried to contact on multiple times," Gascon said.

Gascon admitted, however, that since the plea bargain happened unexpectedly at a hearing not on the established court calendar, Jenny wasn't notified.

The last-minute hearing took place because prosecutors and the Public Defender's Office wanted to make a deal quickly, a violation of Jenny's right to attend the hearing, said Meg Garvin, director of the National Crime Victim Law Institute,

"There's no exception," Garvin said. "She should have been able to be heard at it, which means they couldn't take the plea and it should not have been entered with the court."

"There's no exception in Marsy's Law for expediency."

Gascon maintains that Jenny's case was a rare slip-up.

At least two other Bay Area counties have had similar problems, according to other crime victims KCBS contacted for this series. Garvin suspects the problem is far more widespread.

"Sadly I think it's really common. The systems for so long has operated without victims' rights that we're not used to a system that says, stop," he said.

San Francisco Public Defender Jeff Adachi concurs. He estimates that, at most, 20 percent f crime victims assert their Marsy's Law rights, adding that even when they do so, it's easy for those rights to be forgotten by an overwhelmed system.

"When you're dealing with a high volume of cases, for a prosecutor to keep track of each and every complaining witness is a challenge. So complying with Marsy's Law is a practical problem for defense attorneys and prosecutors," Adachi said.

Orange County Supervisor Todd Spitzer, who ran the statewide campaign to pass Marsy's Law in 2008, said that unfortunately it may take a case such as Jenny's to force the system to take notice.

"Victims' rights are being trampled. Bail hearings are being held without notifying the victim. Defendants are released from custody without notifying the victim," Spitzer said.

"We're going to see this go on until the victims stand up and say, this is wrong."

The next installment of this series examines possible remedies.

(Copyright 2013 by CBS San Francisco. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)

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