Proposed Rule 44.1 to Appoint Counsel for Crime Victims in Federal Courts

Page 57 of 78 2007 Utah L. Rev. 861, *940 Based on this legislative history, Kenna concluded that crime victims have the right to speak at CVRA-covered proceedings. 445 Kenna explained that this interpretation advanced the purposes of the CVRA, for the "statute was enacted to [*941] make crime victims full participants in the criminal justice system.". 4° The Advisory Committee should follow that lead and provide that victims are guaranteed a right to speak at sentencing. *47 Of course, in cases involving numerous victims (for example, a massive fraud case), the CVRA itself allows courts to fashion a "reasonable procedure” to accommodate the competing concerns. #48 Rule 44.1 - Discretionary Appointment of Counsel for Victim The Proposals: I proposed that the court's discretionary authority to appoimt counsel for a victim should be included in a new rule as follows: Rule 44.1 Counsel for Victims. When the interests of justice require, the court may appoint counsel for a victim to assist the victim in exercising his or her rights. “49 The Advisory Committee did not propose any change in the Rules on this subject. 4° Discussion: The Advisory Committee never discussed this particular proposed change, so it is possible that its failure to adopt it was an oversight. +5! In any event, here it is perhaps useful to emphasize just a few points in favor of this proposal. While the CVRA does not create a right to counsel for victims, nothing in the Act deprived the courts of their preexisting inherent authority. The courts generally have the right to appoint volunteer counsel in civil cases, *** a power that would seem to extend to criminal cases. Indeed, the Supreme Court has left open the question of whether federal courts possess the inherent authority to require counsel [*942] to provide legal services to the poor. ** The local rules of some federal courts already explicitly recognize this power. *>4 In addition, Title 28 broadly permits the court in both civil and criminal cases to "request an attorney to represent any person unable to afford counsel." 49° And before Gideon v. Wainwright, *°° courts could request 45 Td. 46 Td. 47 Tn possible response to such concerns as I raise here, the Advisory Committee modified the Advisory Committee Note to this rule. See infra notes 587-589 and accompanying text. 48 18 U.S.C. § 3771(d)(2) (2006). #9 Cassell, Proposed Amendments, supra note 4, at 912-16. 450 See Proposed Amendments, supra note 71. +41 See CVRA Subcommittee Memo, supra note 66, at 17-20 (listing my proposals that the subcommittee decided not to recommend; my proposed Rule 44.1 change not among them). 452 See generally Judy E. Zelin, Court Appointment of Attorney to Represent, Without Compensation, Indigent in Civil Action, 52 A.L.R. 4th 1063 (1987 & Supp. 2004) (collecting and analyzing cases considering the issue of whether the courts can appoint counsel in civil actions to represent indigents). 453 Mallard v. U.S. Dist. Court, 490 U.S. 296, 307, 308 n.8 (1989). +4 See, e.g., D. Utah Civ. R. 83-1.1(b)(3) ("Any attorney who is admitted to the bar of this court must agree, as a condition of such admission, to engage in a reasonable level of pro bono work when requested to do so by the court."). 455 28 U.S.C. § 1915(e)(1) (2006) (emphasis added). 8 372 US. 335 (1963). DAVID SCHOEN HOUSE_OVERSIGHT_017692