Thursday, October 8, 2009

Defense Initiated Victim Outreach - DIVO - capital murder defense to reach out to victims?

I attended an interesting continuing legal education seminar (CLE) yesterday. From 8:30 to 5:00 less lunch & 2 breaks, we learned from those involved in the defense, some involved in prosecutors' offices, families who had a member murdered, and psychology related experts,about a new program that being promoted. It is called DIVO - defense initiated victim outreach. (I point out the length of time to emphasis that after a full day, I still have tons of hmmms so you won't get all the answers here for sure.)

Right now (a year into the grant period), the group is focusing on capital murder cases. The thought is that there are the - I don't know another word to use - "residual" victims - of murder? Those who are affected by the murder but who did not die. The family members, other loved ones, etc. Those who often are kind of forgotten in the process. (That will be the topic of another blog.)

The result is not defense oriented, although it originates from the defense. The speakers talked about the discomfort most lawyers feel when it comes to dealing in and outside of court with those left behind. (For purposes of this writing, I'll will simply call them victims. I am not attempting in any manner to minimize their hurt or loss - just trying to put a term to a list for this posting.)

A couple of therapists attended - one who had conducted a study and as she was giving her results, she had tears in her eyes. It was quite apparent that in working on the study with the victims, she had grown to know the them and sympathize with them. She told us that when she first learned of the program, she was quite suspicious that it was an effort by the defense to try to get something from the victims - to act in a manner that would cause further harm to the victims. However, after learning about it and seeing it in practice, she is now an advocate for the program.

The plan is that a Victim Outreach Specialist (VOS) who has been specially trained (not certified just because there is no avenue for certification at this time) will be requested by the defense (funding requested by the defense) for the purpose of communicating with the victims & trying to meet their "judicial needs" - any questions they have about the process. (I came to understand how complicated it is for them yesterday. I'll write separately about that.) The VOS CANNOT share with the defense, unless the victim wants them to do so. The VOS will work with the victim (possibly in the victim witness office of the DAs' office) to help the victim through the process, and help the victim obtain answers to their questions.

I'm trying to narrow down to posting the bottom lines, but I know defense lawyers, prosecutors, judges, & others who read this will have many questions including (1) what is in it for the defense; and (2) the prosecutors' offices have victim rights people so why can't they fill this need. The whole idea is very complicated.

First - there is often going to be nothing in it for the defense. Remember, the defense only gets information from the VOS IF the victims agree. The VOS signs a contract with the defense so advising them. The defense MIGHT find that the victims are more willing to talk with the defense team. And, some times the defense might find that the DA's office is pursuing an end against the wishes of the victims.

The thought conveyed to attempt to get the defense interested in the program is that the defense is making an effort to reach out to the victims so that very weird wall that arises during trial, during victims' testimony, is at least not so high. As was stated, "how can the defense ask for compassion while showing none to the victims?"

It is a hard sell to the defense in my view for such reasons as (1) we have a duty to attempt to interview every witness so we may still have to try to interview those same victims with an investigator or mitigation specialist; (2) there are already limited funds for the defense in attempting to obtain evidence that is helpful & this would probably encroach on those funds & our client would likely not receive much from it; (3) I still have a hard time understanding why the defense is to make this effort. The State has people to do the job - apparently, though, they are not doing a satisfactory job. (It is likely they do not have enough funding & have too many cases. This would vary by office. Could be a training issue. Could be a personnel issue. So many things.); (4) Why can't the trial court appoint someone instead of the defense asking? And the list goes on . . .

The bottom line answer for why it must be the defense is apparently this (in a nutshell): victims have questions that only the defense can answer. In the healing process (which never ends & continues for the victims' entire lifetime), there is the need for answers and the need does not fit with the schedule of the trial. The healing process is hindered because the victims cannot get answers & are left in the dark for so much of the process (despite the efforts of the prosecution - which cannot provide many answers.) An example? Did the deceased see it coming? Was s/he asleep? Did they suffer? Did s/he know you? Where are you from? Did you have one or both or neither of your parents raise you? Did you have a good childhood? Were you abused? What were you thinking when you killed my love one? Why would the lawyer take a case like this? The list goes on. (You can imagine all the thoughts that go through a person's head from the time right after the death, throughout possibly the rest of their lives.)

So - the explanation of why it must be the defense who requests it starts with the fact that there must not be a question of guilt. Then, the defense must be in agreement to participate - even if it means that the answer is "I cannot answer that at this time." The hope is that the VOS obtains at least some answers that help the victims gather knowledge that they "need". (Need meaning whatever the victim feels because every victim handles the situation different. Every victim has different feelings.)

It is definitely innovative. It starts with a good premise - people helping people. It has potential for abuse - by the defense (if the the VOS is not properly trained.). It has little potential for helping the defense (without the abuse.) It has great potential for damaging the defense - the State is not prohibited from learning what the VOS has discovered. AND, it is being flat rejected by the Harris County District Attorney's Officer per one of the top leaders in that office. (More on that in my next blogspot.) Surprised? Not me. The most offensive part to the prosecution is that it has been proposed as by a well respected DEFENSE lawyer - Dick Burr & is supported by another well known & respected DEFENSE lawyer - John Niland, AND - I think this is the biggest problem - it is entitled DEFENSE Initiated Victims Outreach. More on this in the next spot.

But, leave this knowing that defense lawyers are not all bottom dwelling scum suckers who care nothing about anyone (including victims) and want to win at all costs. We are people, and there are many interested in the human, humane side of the law, too. (And, there are bottom dwelling scum suckers in the prosecutors' offices, too. I have dealt with some personally.)

Think about the DIVO program. Comment if you like. It is in the infancy stages, and I am positive I don't totally understand it because my initial reaction was "hell no" and my continued feeling is uh - why would we as zealous advocates for our clients - which we must be - it is the rules, the law, & the only way the system can work. But then again, we are all people (& most of us care, in general, about other people. . . )

As the saying goes, it is complicated . . .


  1. Hmmm....I don't know how I feel about this one. It definitely raises some interesting questions. I am all for victim's rights and the rights of their families, but I don't know about funds being requested by the defense. It just does not seem to benefit the defense that much. It seems much more beneficial for the defense to request funds from the court for a court appointed private investigator. In many cases, when we interview witnesses we are able to obtain much more information than the attorneys get from the witnesses. Attorneys are so busy with the legal aspect of preparing their cases and their actual court appearances that they often times can't or won't go out into the field to interview witnesses. Witnesses many times feel intimidated when they have to come in to the office for interviews. When we interview them on their own turf, it is a more relaxed atmosphere and we often get valuable information that assists in preparing a defense. Funds are already limited, but since the defendant is entitled to a court appointed investigator to investigate their case, it would seem to be a more wise decision for defense attorneys to request funds for an investigator and for VOS. This is just my opinion, but it just seems to not make much sense initially to me for the defense to request funds for this. I guess I will have to think about it awhile and follow how it plays out before I make my final opinion.
    Stacy Gilliland Flores, B.S.,M.S.
    Texas Private Investigator

  2. Oops. In my above comment, I meant to say --request funds for an investigator instead of for VOS. The way it reads now, it appears that I was saying request funds for an investigator and for VOS, which of course would not make sense with the rest of my post. That's what I get for not proofing my comment before I hit submit.

  3. I just finished a capital murder case where two teenage girls were killed, and I can feel the surviving parents' grief. My own son is 16. I don't know what to do with that. I'm representing the defendant on appeal, and I plan on doing the good job I always do. But I was appalled by the way the State seemed to use the parents' grief, turn it into a spectacle, show a nude picture of their dead daughter that was completely unnecessary (she was killed by a gunshot wound to the head), and then gave them the idea that my client's execution would give them the closure they need. One of the DAs, totally inappropriately, I thought, laughed and smiled throughout the trial, while doing everything he could, it seemed, to inject error into the trial. I think very often victims are extremely ill-served by DA's Offices. But maybe I'm wrong.

  4. Why should the state have to pay for a D.I.V.O. representative? CASA is a volunteer program, VOM for juvenile courts are volunteer. Why are we asking another undue financial burden on capital cases. I work for the juvenile system and am very victim centered, during my studies I met a professor who was a DIVO specialist and convinced me that this was for me. His main selling point was that it was victim centered, and the money he made doing the program. I attended his seminar, watched his video and felt that DIVO was an undue financial burden on our already overwhelmed courts and criminal justice system. The idea of Divo is complicated, but in the end serves little purpose for the outrageous fees they charge. The few meetings that they are actually allowed to attend and the emails and visits they share with victims do not warrant what they charge. This program could quite easily be moved into a volunteer category. There training is only a 40 hour training which is similar to the programs mentioned above and they have a once a year refresher training. They do not receive and special education other then this. The only qualification is that you have a Criminal justice or similar educational background. I feel uncomfortable with the financial aspect and virtually little that is actually accomplished by this program. I further inquired as what they saw an application for juvenile work. "oh, absolutely." was the reply,"but it would be a complicated sell and you defiantly wouldn't make as much." I understand that we need to heal all victims of violent crime. I am always looking for evidence based programing for youth and ways to help relieve the financial burdens of our court systems, but DIVO is not the answer. I do not disagree with the basic idea that was started from the heart of a wonderful man for the right reasons, however, I do disagree with the rest. I feel that defense attorneys and judges should give great consideration before using this group.


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