A guide for creating defense-based victim outreach services prosecuting attorney manual



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DEFENSE-INITIATED VICTIM OUTREACH (DIVO):

A GUIDE FOR CREATING DEFENSE-BASED VICTIM OUTREACH SERVICES

PROSECUTING ATTORNEY MANUAL

The University of Texas at Austin


This manual was initially funded in part through grant number 2009-CP-BX-0001 from the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice. Neither the U.S. Department of Justice nor any of its components operate, control, are responsible for, or necessarily endorse, this manual (including, without limitation, its content, technical infrastructure, and policies, and any services or tools provided).

This manual was produced by the

Institute for Restorative Justice and Restorative Dialogue at

The University of Texas at Austin.


Stephanie Frogge, MTS

DIVO Project Coordinator
Marilyn Armour, Ph.D.

DIVO Project Director

©IRJRD, School of Social Work, The University of Texas,

1925 San Jacinto Blvd., Austin, TX 78712

Phone: 512-471-3197 Fax: 512-371-7911, E-mail: irjrd@austin.utexas.edu

Website: www.irjrd.org

TABLE OF CONTENTS


Introduction to the manual


4

Introduction to DIVO


6

DIVO’s history


8

Evolving standards of practice


10

More on restorative justice


12

DIVO in short


13

DIVO’s non-aligned status


14

Victim survivor trauma


15

Principles of DIVO


16

Collaboration


22

Involuntary relationship and DIVO


24

What kind of needs has DIVO addressed?


26

Questions and issues for prosecutors


28

Why can’t a prosecutor-based advocate do the work?


32

Selecting Victim Outreach Specialists


37

Training prosecutors on DIVO


38

Summary


39

Appendix 1


41

Appendix 2


43

Appendix 3


46

Appendix 4


77

Appendix 5


82

Appendix 6

85


DEFENSE-INITIATED VICTIM OUTREACH

Introduction to the Manual
DIVO is a process by which victims and survivors of crime may, if they choose, access the defense attorney or defense team through a trained Victim Outreach Specialist (VOS) in order to attend to needs and interests that can best be addressed by the defense. If the service is desired, the VOS works with the victim survivor, or in the case of a homicide, the family, to identify questions, concerns and needs that can be uniquely addressed by the defense, and communicates those issues to the defense, assisting them, as needed, in formulating a response. Through the VOS the defense then has an opportunity to potentially meet victim survivor needs without compromising the due process rights of the defendant.
In a very real sense, DIVO is as much a philosophy as a “program.” Through the historic work of countless crime victim survivors and their advocates we now have police-based crime victim liaisons, prosecutor-based victim assistance coordinators, and corrections-based service providers. It’s time now that the defense community, whose members serve a core function within the criminal justice system, recognize and act upon their obligation to the victim survivors whose experiences of harm initiate and drive the process. The responsibility for treating victim survivors with dignity and respect falls to every member of the criminal justice system.
This manual will assist you in developing principled Defense-Initiated Victim Outreach in your state or region. In it you will find material that will assist you in promoting DIVO among prosecutors and other key stakeholders including defense attorneys, judges, and victim service providers. Agendas and material for training prosecutors are included. Finally, this manual will present programmatic ideas for maintaining and coordinating a DIVO program, overcoming obstacles, maintaining accountability, and assuring continuity of service.
This manual has been developed with funds from the Bureau of Justice Assistance, US Department of Justice, in part to document lessons learned in Texas, one of the early states to intentionally implement a DIVO program. Throughout the manual the term “Texas Model” will be used to denote the practices and experiences in that state as opposed to DIVO efforts in other states and at the federal level. While the Texas Model is an expression of current best practices, Texas laws and procedures, the experiences of a great many professionals, and more than three years’ refinement, it does not promote itself as one that can be adopted elsewhere with no expectation of additional reflection and thoughtful adaptations. You can anticipate making modifications based on the laws and practices in your area. Even within this manual you can expect to find illustrations and anecdotes that reflect practices that differ from those presented under the rubric of the Texas Model.
As will be made clear in the history section of the manual, DIVO was initially developed for use in capital cases and for a variety of reasons, capital cases make up the majority of DIVO cases today. This manual discusses the use of DIVO in non-capital cases but throughout the material the term “victim survivor” will be used to denote the person or persons most directly harmed by the crime, either as primary victims or secondary victims, whether or not someone was killed. What constitutes appropriate terminology continues to evolve in the field of crime victim services and other terms may be common practice in other parts of the country or by crime-specific service providers.
The authors of this manual, other DIVO practitioners, and DIVO proponents throughout Texas and the United States are passionately committed to defense-based victim outreach and stand ready to assist, advise and consult. You are not alone in your efforts and are encouraged to utilize these people in ways helpful to your work. Feel free to contact the Institute for Restorative Justice & Restorative Dialogue at The University of Texas at Austin for advice, clarification, referrals, and moral support.
Introduction to DIVO
D
"Innovative practices in criminal justice are most often viewed as being controversial at the outset and then, after being time-tested and empirically investigated, can become the proven practices that are generally thought of as having been more obviously good ideas."

IVO has three overarching purposes. The first is to provide victim survivors with an additional avenue of information and services, which in turn, enhances coping through empowerment and control. For example, the victim survivor of a home invasion may be receiving information from the police, from the prosecutor, from a community victim assistance program, and from a trauma support group. Having access to the defense is another means of information and potentially a mechanism by which the victim survivor may have input into and control over the criminal justice process. The second is to reduce the harm that criminal justice proceedings inadvertently and often unnecessarily inflict on victim survivors. The criminal justice system is by design an adversarial one and that tension imposes a level of injury even among those who willingly participate in the process. By creating a bridge between the victim survivor and the defense, anxiety can be reduced through information, clarity and control. The third purpose of DIVO is to provide defense counsel a means to relate to victim survivors with respect and compassion. Many defense attorneys are keenly aware of the harm that has been inflicted upon the victim survivor in a particular case and have no desire to exacerbate their pain, indeed, would seek to reduce it if they could. As standards of practice have evolved in the defense community there is a greater expectation of civility and respect towards victim survivors, but defense attorneys are uncertain about how to behave in such a way that their gestures of civility will be accepted and not cause greater harm. DIVO provides a mechanism to address all three of these purposes.
The following provides a snapshot of what DIVO is and is not, and each principle will be discussed in greater detail elsewhere in the manual.

Text box quote from: Ruth-Heffelbower, D., & Gaboury, M. T. (2008). Victim-offender programs in correctional settings - Can they effectively bridge divergent perspectives? In L. J. Moriarty (Ed.), Controversies in Victimology, 2nd Edition, p. 133. Matthew Bender & Company, Inc.

DIVO Is:

♦ a bridge between victim survivors and the defense attorney;

♦ a mechanism by which victim survivors can have access to, interaction with,

and potentially influence the defense process as well as the prosecutorial

process;

♦ voluntary on the part of the victim survivor;

♦ a way to give victim survivors greater information, more options, and more

active roles in the criminal justice process;

♦ a way to potentially reduce the adversarial nature of the process and its

negative impact on victim survivors;

♦ appropriate regardless of the victim survivor’s beliefs about appropriate

sanctions;

♦ typically authorized and paid for by the court;

♦ based on restorative justice principles;

♦ guided by written, value-based principles of practice;

♦ consistent with American Bar Association guidelines for defense counsel; and

♦ voluntary on the part of the defense attorney.
DIVO Is Not:

♦ victim / offender dialogue or a mechanism by which the victim and the defendant have direct contact;

♦ a replacement or alternative to victim services provided by the state, non system-based programs or social service agencies;

♦ a mechanism by which the defense is able to gather information about or relay

messages to the victim survivor;

♦ carried out by defense attorneys, mitigation specialists, investigators, or other

members of the defense team;

♦ guaranteed to help the defendant in some way; or

♦ provided by someone without specific training in DIVO work.

DIVO’s History

DIVO was conceived during the prosecution of Timothy McVeigh, the mastermind behind the bombing of the Murrah Federal Building in Oklahoma City. Although committed to assuring McVeigh’s constitutional rights, the defense team was keenly aware of the enormity of suffering – 168 dead and nearly 700 physically injured.


From a strategic standpoint, the defense team, led by Richard Burr1, knew that victim impact evidence was going to be a factor as well. Many of the victim survivors were going to be a direct part of the process and many more wanted information and input. Uncertain about how to proceed in a way that wouldn’t cause further harm, the defense team sought the counsel of Dr. Howard Zehr of Eastern Mennonite University. Dr. Zehr is considered to be the leading expert on restorative justice in the United States and a logical source of guidance. Dr. Zehr, along with his graduate assistant, Tammy Krause, worked with McVeigh’s defense team to identify and develop strategies that would not only reduce the trauma of victim survivor participation but would also potentially meet needs for information and control.
Following the McVeigh case, DIVO continued to be developed and soon became widely utilized in federal capital cases, in large part due to Tammy Krause's entry into the federal defender system.  Ms. Krause continued to lead trainings on DIVO through her affiliation with Eastern Mennonite University, along with Kelly Branham and Pamela Leonard, both of whom were trained by her.  As the use of DIVO grew, Kelly Branham stepped in to work with Ms. Krause full time. The two worked to provide trainings for DIVO practitioners, teach attorneys about DIVO and Restorative Justice principles, consult with federal trial and habeas teams and make referrals nationwide. 
In 2007, Ms. Krause left her federal role to pursue further graduate education and Ms.
Branham, an attorney as well as a DIVO practitioner, was named national victim outreach coordinator.  Ms. Branham, along with Lisa Eager and others trained in the federal system, continue to conduct DIVO training as well as provide consultations and referrals for federal capital trial and appellate teams.  The number of federal cases (both capital and non-capital) utilizing DIVO is at an historical high, underscoring the efficacy
and importance of the work.
As interest in DIVO at the state level grew, a grant from the JEHT foundation enabled Pamela Leonard, through her position at Georgia State University, School of Social Work, to pilot the first state-wide DIVO initiative through the University’s Georgia Council for Restorative Justice2 and develop a comprehensive training manual. It quickly became evident that a more focused and intentional strategy was needed to meet the burgeoning interest in DIVO at the state level in both capital and non-capital cases. Ms. Leonard and her colleague, Elizabeth Beck, obtained a grant from the Bureau of Justice Assistance, US Department of Justice, to develop DIVO in Texas and Louisiana utilizing a dual approach – identifying and training practitioners while at the same time providing extensive outreach to educate the defense bar, the judiciary, and victim service providers about the needs of victim survivors from the criminal justice process, the use of DIVO, and the potential advantages of raising defense standards of practice as they relate to the victim survivor.
In many ways Texas was a logical choice for initiating DIVO at the state level. Given DIVO’s historical focus on capital cases it made sense to bring the work to the state where many capital cases originate each year.3 In addition, developments related to capital work in Texas are closely monitored throughout the country and it was anticipated that implementing DIVO in Texas would result in a more apparent “ripple effect” than it might in another state.
In searching for a Texas partner to implement DIVO, Dr. Leonard became acquainted with Dr. Marilyn Armour at The University of Texas at Austin, School of Social Work. Dr. Armour is nationally known for her work in restorative justice, particularly in crimes of severe violence. She also has more than 30 years experience as a psychotherapist, specializing in work with victims of serious crime and trauma, and had conducted research on the impact of the adversarial system on victims of crime. After more than a year spent reviewing DIVO material, interviewing practitioners and stakeholders, and consulting with victim survivors themselves, Dr. Armour agreed to allow the Institute for Restorative Justice & Restorative Dialogue (IRJRD), UT-Austin, where she serves as director, be DIVO’s institutional home in Texas. Today DIVO is coordinated by Stephanie Frogge, MTS, former national director of victim services for Mothers Against Drunk Driving.
Evolving Standards of Practice
The idea of a defense attorney providing victim services in any capacity tends to challenge almost everyone’s idea of how the criminal justice system works.  And that reaction, while almost universal, underscores the adversarial nature of the process, which, until relatively recently, has gone largely unquestioned.  However, two movements have helped to establish the foundational principles that underscore the value of defense-based victim outreach. 
The first is the victim rights movement.  Now almost 40 years old, the field of crime victim rights and services has significantly changed the criminal justice landscape to include victim participation and input.  In the 1982 Presidential Task Force on Victims of Crime Final Report, the committee found the treatment of crime victims by the system to be “a national disgrace.”i Sixty-eight recommendations for the criminal justice system as well as allied systems continue to provide a blueprint for standard rights and services.  Every state has established legislated rights for crime victims typically including the right to be heard by the system and the right to participate in criminal justice processes – from investigation to post-incarceration – in meaningful ways.  Several states have ombudsman programs with the authority to investigate and correct allegations of victim rights violations. 

 

The second burgeoning influence is the restorative justice movement.  Encouraged by the results of restorative justice initiatives in Canada, New Zealand and Australia, US proponents have embraced restorative justice’s core principle of addressing harm.  Whereas the traditional criminal justice system focuses on identifying and punishing the



perpetrator, the restorative justice system focuses on identifying harm and seeking to restore the victim, the offender and the community to wholeness.  Interestingly, the restorative justice movement appears to resonate across the political spectrum from “right wing” criminal justice professionals frustrated with ineffective rehabilitation efforts and high recidivism rates, to “left wing” individuals concerned about the implications of the country’s prison industry and the staggering numbers of citizens under some form of criminal justice control.  Many victim rights activists also find the movement’s victim-centered focus consistent with their efforts to help victim survivors cope and recover from the crime.

 

DIVO builds on the philosophies of both victim rights and restorative justice.  DIVO gives victim survivors another source of information and influence and increases the number of options available to them throughout the process.  DIVO also offers the possibility of a measure of restoration by acknowledging and acting upon the involuntary relationship that is formed between a victim and an offender.


The work of defense attorneys has been impacted by these influences as has other facets of the criminal justice system.  Defense attorneys understand that victim impact evidence will be taken into consideration by the court and that a strategy of engaging crime victims and state witnesses with disrespect is one that will likely backfire. Further, the American Bar Association has adopted a position of victim contact in their guidelines for defense in capital cases. Many defense attorneys are genuinely interested in doing what they can to reduce unnecessary tension and to avoid behaviors that victim survivors will find offensive. However, defense attorneys also readily admit that they are uncertain about how to go about doing this or have tried in the past only to have been rebuffed. DIVO provides an ethical mechanism for defense attorneys to explore how they might meet needs of victim survivors by engaging the services of a qualified and trained Victim Outreach Specialist.

More on Restorative Justice
Restorative Justice is a philosophy. It is a paradigm that views crime fundamentally as a violation of relationships. In some cases that may be a literal relationship – when the parties know one another or are related to one another through ties of kinship. In other cases the parties do not know one another but restorative justice still sees the harm as a violation of the rules that allow us to live in community. In addition, restorative justice recognizes the impact that the harm has on the wider community – that crime is more than a private matter between two individuals. Restorative justice acknowledges the ripple effect of crime and maintains that the safety of the community is jeopardized and that the community is also responsible for addressing the harm.
Those new to the restorative justice philosophy sometimes confuse it with a particular program. Restorative Justice is not victim / offender dialogue, although that can be a restorative justice initiative. It is not prison programs or re-entry strategies, although such programs can operate on restorative justice principles. Restorative justice does not promote the doing away with the criminal justice system but does suggest that its principles can influence the work of the criminal justice system, as well as offer alternatives in certain situations. Restorative justice is a way of thinking about crime – a different way of thinking than that of the traditional criminal justice system.
Dr. Howard Zehr, who assisted in the development of DIVO, is considered by many to be the founder of Restorative Justice in the United States. To help illustrate the differences between criminal and restorative justice philosophies, Dr. Zehr suggests that the two systems ask very different questions when responding to crime.


Criminal Justice

Restorative Justice
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