COVID raises questions about where victim advocates sit in Wyoming courts

JACKSON — Designated advocates routinely support crime victims in courtrooms per state law, but two local defense attorneys are raising questions about where they sit and whether their presence might prejudice a jury.

The role of the crime victim advocate varies, but generally they help guide the victim through court proceedings, acting as a liaison with different law enforcement and judicial offices, and also providing in-person emotional support for crime victims during judicial proceedings.

However, during a March 2022 appeal hearing for a sexual assault case, defense attorneys Devon Petersen and Tom Fleener argued that the proximity of the victim advocate, who was allowed to sit near the victim in court, might have prejudiced a jury.

This specific case marked Teton County’s first jury trial since the COVID-19 pandemic altered court proceedings. 

The June 2021 trial had limited courtroom access, for example, which prohibited members of the public from attending in person. That meant the defendant’s friends and family could not attend in person, which could have balanced out the mix of supporters in the courtroom for both the defendant and victim, the attorneys argued.

Changes to the courtroom’s configuration due to COVID also meant the victim advocate sat directly next to the victim, rather than among a crowd of spectators as is sometimes done. 

Fleener and Petersen argued that such a prominent presence might have conveyed more credibility or authority to the victim.

Prior to the pandemic, according to state and national experts, no standards existed as to where victim advocates are allowed to sit in courtrooms. Presiding judges typically decide where victim advocates sit on a case-by-case basis.

“As far as the actual location of the advocate in the courtroom, I am not aware of any standard location that has been established or recognized with any consensus,” said Darryl Erickson, deputy director for the Wyoming Division of Victim Services.

Teton County District Judge Melissa Owens declined to comment on the factors she considers when determining where advocates sit in court.

Such variability impacts cases outside Wyoming as well.

Heather Rykal has been the Victim and Witness Advocate for Jefferson County, Montana, for almost eight years.

“I don’t think there’s necessarily a process,” Rykal said. “Not all advocates accompany the individual into the courtroom. It’s about what the victim would want as well. It really depends on the case, the advocate and the agency.”

Even for Victim Support Services, the oldest victim assistance organization and one of the first in the nation, standardization is not the norm.

“In my experience, there is no protocol to where the victim advocate is seated in the courtroom,” Janine Daniels-Moore, Victim Services Coordinator for the Washington state-based nonprofit said. “The victim advocate typically sits either with the family and loved ones or somewhere that has been pre-decided with the family and court.”

Some of the variability in play is due to the wide variety of victim services agencies; some fall under the Department of Justice, some are operated through local sheriffs’ offices and others are nonprofit advocacy groups such as shelters.

According to Cara Chambers, director of the Division of Victim Services for the Wyoming attorney general’s office, the advocacy agency that works with the victim depends on which law enforcement agency responds to the initial report.

The lack of uniformity might just be how Wyomingites like to do business, with limited interference. Or, as Chambers said: “Judicial discretion is just the Wyoming mentality.”

“In Wyoming, it looks different in different counties. We don’t have a uniform court system,” Chambers said. “There’s less uniformity because there’s no administrative office that applies (a standard) to all district courts.”

Victim advocates — community based, law enforcement based, or prosecutor based — have been in courtrooms in various states in the U.S. officially since the mid-1970s.

Their duties vary depending on the situation. 

In general, they are trained to support victims of crime. This includes offering emotional support, providing victims’ rights information, working with police and staffing crisis hotlines. For example, victim advocates might arrange for their client to view graphic photos or testimony ahead of time, to mitigate emotional challenges.

“There are things to consider on where advocates should sit with the victim in the courtroom because of graphic content or otherwise,” said Janine Daniels-Moore, victim services coordinator for Victim Support Services, a nonprofit based in Washington state.

An advocate may also connect someone with victims’ compensation, food stamp assistance, referrals to counseling programs or interpreters.

Advocates are particularly prevalent in protection order hearings, which involve requesting a type of restraining order.

Like so many, victim advocates were strained during the pandemic.

“My thoughts are purely anecdotal ... but I just think it was harder for advocates to access victims during the pandemic,” Chambers said. “Courthouses being shuttered meant getting a protection order was challenging.”

Chambers said victims weren’t sure whether advocacy agencies were open, although they were, among other challenges.

“It was hard for advocates to contact victims who may have been sheltering with the abuser out of necessity due to lockdowns, etc.,” Chambers said. “Also, the virtual court appearances meant an abuser could be just off camera controlling or even threatening the victims. There were just a whole host of challenges.”

Although it varies county by county, Chambers said judges are becoming savvy to this off-screen dynamic and are trying not to hold remote hearings for family violence matters.

Chambers called the recent appeal in the Jackson case that specifically questioned how an advocate’s presence impacted a jury an anomaly.

Both Chambers and Kristen Schwartz, executive director of the Wyoming Coalition Against Domestic Violence and Sexual Assault, confirmed this is not a common issue raised by defense attorneys at the moment, but depending on how this appeal goes, could result in a move toward standardizing.

“Maybe there would be some movement if this appeal goes somewhere in the defendant’’s favor by the Supreme Court, but right now in our community and circles I haven’t heard about it a lot,” Schwartz said. “I don’t see it being a huge issue, but that could turn if this defendant is successful on his appeal. Then it would probably be a consensus amongst judges where to place the advocate in the courtroom.”

However, Judge Marvin Tyler of the 9th Judicial District, Sublette County, issued a June 3 decision denying Christopher Tarpey’s appeal for a new trial.

For victim advocates, that decision comes as affirmation that their lack of standardization might not become a future tactic for appeals.