RJ, DIVO - An Aspect of Restorative Justice in Texas Murder Cases

7th October saw a group of defence attorneys in capital murder cases gather in a downtown Houston hotel for training about Defence Initiated Victim Outreach (DIVO), a new programme designed to provide a back channel between the families of murder victims and the defence team. This date was also the 11th anniversary of the conviction of the murderer of Paula Kirland's daughter Mitzi and room mate Kelly, stabbed multiple times 20 years ago by a man who had been stalking her. Mitzi was stabbed 28 times, Kelly 9 times and her boyfriend 19 times, losing an eye and his spleen.  Paula tried to see the perpetrator in prison for 12 years before his execution. She finally got a mediation session, which lasted for five hours and in that time "We came to terms with each other, he became human, replacing the monster I thought he was, and he was able to die in peace". She witnessed the execution, which she wanted in order to ensure he would never walk the streets again. Paula says that many victims don’t get past the anger, pain and hatred and that DIVO is win-win as it gives victims a voice in the law, a way to get facts about the case that they otherwise don't get. The defence attorneys apologised for what Paula was having to go through.

DIVO, whilst still in its infancy, is now being used in capital cases in the US, following a grant fron the Jet Foundation (now closed down due to Madoff investments). It has its origins in the frustration of victims families who needed more information from the alleged perpetrator than lawyers allowed them to have. In the United States v McVeigh case (Oklahoma City bombing) there was a huge clamour from victims families for information. Richard Burr, who was part of the McVeigh defence team, found that the families of the victims were not hostile toward him, but rather were gracious and wanted to be in a dialogue with him. He wrote a letter of sorrow and sympathy to the families and offered to meet before the trial. A few took this up and talked on the phone. After 3 days of survivor testimony Richard decided he no longer wanted to be a "passive bystander listening to victims but with no professional relation to the pain of the victims". DIVO developed as a reach out from defence to survivors, changing practice in relation to the "molten pain" at the core of the capital case, being proactive and positive, moving beyond simply defending the case.

Burr says that survivors have needs that can be met only by the person responsible for the murder – needs for information, accountability, and ‘putting right’. The person responsible for the murder has corresponding obligations to survivors. This is where Restorative Justice (RJ) comes in.

DIVO’s first task is to understand the specific harms that survivors experience. The second task is to learn about the needs of survivors, and to identify how the defence might be able to meet those needs. As the defence are often the only ones with information about the facts of the case they have a unique role. DIVO is about listening and responding, not about advocating for the defendant. Providing information, to the maximum extent possible, is core to the process, as is treating survivors with respect. It is crucial to say why when information cannot be provided. Accountability can be addressed through guilty pleas and through specific provisions in plea agreements, such as gagging clauses, promises to pay any income from films etc to a charity, being open to meeting if the family ever wanted to do so.

Marilyn Armour gave the background facts: 20,000 people murdered each year in the US, affecting between 120,000 – 240,000 family members, or 9.3% of the total population. 

Richard Burr says that there is a paradox at the core of DIVO: the defence gains tangible benefits only if the team works with integrity, not if it seeks benefits from survivors for clients. Giving survivors options to meet their needs increases the possibility of a life [rather than death] sentence for clients. Victim impact evidence takes on a different character – he came to realise that victim statements are often only heard for the harm caused, but that the story of survival is important as well.  Life, rather than death, becomes the broad dynamic in the case.  Humane-ness, rather than retribution, motivates decision-making. 


So it seems to me that, whilst murder cases are different from professional abuse, there are some key principles, around communication, giving the victim a voice, and structuring meetings between victims and perpetrators, that could have excellent usage in cases of professional exploitation.