Thursday, Aug. 14, 2003 | 11:08 a.m.
Josie Hsueh wanted to tell a judge about the nightmare she's lived since her parents were hit head-on by a drunken driver in January.
She wanted to describe how her mother, who was critically injured, screamed out in pain after multiple surgeries, and how her father, who suffered broken bones, worked long hours at Caesars Palace to try to cover his wife's medical bills, which topped $600,000.
But Hsueh says District Judge Kathy Hardcastle denied her that opportunity last month by deciding that only Hsueh's mother and older sister could address the court before Kenneth Cappetillo, the man who caused the collision, was sentenced to prison.
Despite a state law that gives victims and their relatives a right to speak before sentencing, some Clark County judges are preventing that from happening.
Judges say it sometimes takes too long to comply with the letter of the law. Advocates for victims rights say that's not a valid reason to violate the law, and the result is judges are not considering key information about how the offender's actions altered the lives of victims.
"First of all it's the law," said Barbara Schell, director of the Victim Witness Program in the Clark County district attorney's office. "But it also begins to give the victim some parity with the criminal. Victims don't have any other opportunity in which to voice the impact the crime has had on them and the need for restitution."
Assistant Chief Judge Michael Douglas said victim impact statements must sometimes be limited due to the court's time constraints.
Overcrowded courtrooms and booked-up court calendars often make hearing from multiple witnesses difficult, Douglas said. Sentencings are generally handed down in the middle of other court proceedings.
"It's partially up to the court's discretion," he said. "A pure reading of the statute would indicate that all victims can speak, but if we are going to conduct the business of the court, we have to draw the line someplace.
"I understand that it's part of the healing process for the family," he added. "The statute gives victims a right and the court attempts to allow them to fulfill that statutory requirement."
Nevada Revised Statute 176.015 says victims must be afforded the opportunity to "appear personally" to "express any views concerning the crime, the person responsible, the impact of the crime on the victim and the need for restitution."
It defines victim as a person against whom the crime was committed, a person who was injured as a direct result of the commission of the crime or the victim's spouse, parents or children. The law does not limit the number of victims who can address the court.
Sandy Heverly, executive director of Stop DUI, who attended Cappetillo's sentencing, said she hopes to use Hardcastle's decision to prevent Hsueh from speaking as the case that will put an end to the limiting of victim impact statements by Clark County judges.
"Victims are the foundation of the criminal and civil justice system," Heverly said. "Without victims, these entities would not exist, including Hardcastle's position as a judge."
Heverly said she plans to file a complaint against Hardcastle with the Judicial Disciplinary Commission within the next few weeks.
"The goal is that some kind of disciplinary action will be taken against her so as not to repeat it," Heverly said. "Hopefully it will send a message to other judges who choose to ignore the law." Heverly said she knows of other Clark County judges who have also limited the number of victim impact statements on other cases, but she didn't want to name them.
Hardcastle says she did not ignore the law nor did she handle Hsueh's situation much differently than other sentencings. Hardcastle said she generally allows only one speaker for each victim to address the court. Victims and their immediate family members can also write letters to the court, which she reads prior to sentencing, she said.
Hardcastle said she doesn't think that policy violates state law.
"It's what's reasonable under the circumstances," she said. "The victim should be heard from, but you have to set up reasonable guidelines."
District Attorney David Roger said victim impact statements give judges a "complete picture" of the crime committed by the defendant.
"I understand judges' concerns about protecting the due process right of the defendant," he said. "However, from our perspective, the statute is clear that (judges) do not have the discretion to decline to hear from victims about charges."
Douglas said the law was important, but that it does not take into consideration the time constraints placed on the court on a daily basis. Douglas handed down 15 sentencings during his Tuesday morning calendar alone, he said.
"The Legislature had a good intent, which was to allow victims to put a human face on the deceased," he said. "But the Legislature didn't consider the purpose of the court and the burden on the court. There's a problem with judicial economy."
Josie Hsueh said she was also a victim of Cappetillo's crime and deserved to be heard.
"I live in Las Vegas," the 25-year-old said. "I work here and I pay taxes here. This affects all of us. I should have been able to speak."
Cappetillo had been westbound on Spring Mountain Road near El Camino Road when he failed to yield at an intersection and hit her parents, Helen and David Hsueh, head-on. Prosecutors said his blood-alcohol level was 0.21 and he admitted to having cocaine in his system at the time of the collision.
Helen Hsueh, who runs a local Chinese newspaper, lost her gallbladder, tore her colon and fractured her ribs in the collision. She also underwent three back surgeries.
Josie Hsueh had prepared a statement to read to Hardcastle and was in court before she was told she couldn't address the judge, she said.
"I was devastated," she said. "It took so much for me to get the courage to speak. Now I don't have the relief of getting these things off my back."
Other victims who spoke in Clark County courtrooms expressed relief that they were able to finally confront the offenders who were charged with killing or injuring their family members.
Alice Sheldon, whose husband, Russell Sheldon, 58, was hit and killed by a drunk driver as he jogged near his home on New Year's Eve, said addressing Alberto Perez Ortega, 33, before he was sentenced was therapeutic.
"I had the opportunity to let him know how devastating his actions were," she said. "I wanted him to know that this involved a lot of people."
Sheldon's grown daughter, Kelley, said addressing District Judge Jackie Glass, who handed down Perez's sentence, was equally satisfying.
"It was a way to express to her our feelings so that this will never happen again," she said. "It felt like (Glass) was really listening."
Hardcastle said victims should know that they will not always gain closure from addressing the court. Gaining closure is not the purpose of victim impact statements, she said.
"The purpose is to let people know that there are real people out there who have been hurt by what's been done so we know that this impacts real people's lives," she said.
Assistant Public Defender Ralph Baker said defense attorneys generally oppose all victim impact statements because they take the focus of sentencing away from the defendant.
"We usually don't like victim impact statements to begin with," he said. "They are usually emotional and we think it makes a carnival aspect out of the courtroom."
Because the victims are required to speak last, Baker said, the judge is often left with the victim's heart-wrenching sentiments before handing down a sentence.
"The system is supposed to look at the defendant and how the sentence will affect him, not rectify the terrible thing that happened to the victim, which cannot be undone," he said.
Victims who wish to speak at sentencings in District Court must register with the Victim Witness Program so that officials can inform defense attorneys, Schell said. On the day of the sentencing, victim witness advocates go with speakers to courtrooms and sit with them upon request.
Schell said most victims of crime do not know about their rights. For example, the same statute that gives victims a right to speak before a sentencing also requires the prosecutors to provide notification about the sentencing not just to the victim's immediate family members but also to any "other relative or victim who requests in writing to be notified of the hearing."
"Most people don't have an understanding of how the system works until they are introduced to it through drama or crises," Schell said. "The single most important thing we can do is empower them with information."
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