Defense attorneys approach empowering victim-survivors with substantial amounts of skepticism. They fear that participating in victim-centered activities, especially ones initiated by the defense, may violate the attorney’s obligation to protect the defendant by bringing more harm to their client. They question the good that can result from reaching out to victim-survivors. They wonder if their client questions their loyalty by buddying up with the victim-survivors. These are reasonable and natural concerns for attorneys who have been trained and immersed in the adversarial process. Still, these concerns are unsubstantiated. Defense attorneys who have engaged in DIVO claim otherwise. The reality is that many defense teams have participated in DIVO with great outcomes and success.
“There is no downside. As a practical matter, when we address the needs of victims that we are uniquely able to address, we create the space for survivors to begin considering options other than the death penalty.” – Richard Burr, Defense attorney in the Oklahoma City bombing
“Experienced capital defenders have slowly come to realize that effective representation includes recognizing the rights of victims and acknowledging their enormous loss, which will likely be considered in determining punishment. In fact, a growing number of capital defense teams understand that they must listen to the voices of victims, whether the defense goal is a life sentence by plea or trial. Many of these attorneys are incorporating outreach to victims into their advocacy for their clients.” – Pamela Blume Leonard, Director of the Georgia Council for Restorative Justice
“Providing empathy and information to victims with their ethical obligations may increase options for the defendant. Also options might be increased for the defendant’s family members who often want to reach out to victims but fear they will increase the misery of victims and perhaps harm the defendant’s chances of avoiding the death penalty if they do.” - Pamela Blume Leonard, a well-respected VOS and Director of the Georgia Council for Restorative Justice
Participating in DIVO does not mean that defense attorneys relinquish or diminish their zealous advocacy for their clients. It simply means that the defense is choosing to advocate for their client by addressing the matter that is at the heart of the prosecution.
A defense team which is aware of the needs of the victim-survivors and assists the defendant in meeting those needs is essentially taking away the strength of the prosecution.
Even when the defense is arguing actual innocence, DIVO can be effective. Richard Burr (2006) states, “Victims’ interests in having the guilty party held accountable, prevented from further harm, and punished are not satisfied by prosecution of the wrong person.”
More than likely, the most unfortunate outcome of reaching out to the victim-survivors is that they reject the service and wish not to be involved with the defense. In this case, at least they will know that the defense was sensitive, caring, and respectful enough to acknowledge their pain and loss.
Further, providing capital defendants with the opportunity to participate in DIVO offers them the prospect of healing and transforming their lives. Capital defendants may be able to identify the contextual factors which lead to violence and murder, provide a service to society by living in a more positive, peaceful life, and be of service to others whose lives may be leading down a violent road by educating them about the harms of their actions.
DIVO should not be avoided solely due to an unrealistic and unsubstantiated fear of the victim. While the needs of the victim-survivors should be addressed regardless of benefit to the defense, the fact remains that few defense attorneys are going to engage in a process that has no advantage to their client or case. Fortunately, there is a benefit to the defense as Pamela Blume Leonard poignantly describes, “A defense attorney who compassionately acknowledges the terrible loss victims have suffered, and stand with them in their quest for restoration and restitution, has far greater credibility when asking for the life of his client to be spared.”
See our DIVO Reference page for all quote references. |
