New Jersey case is latest bid to balance victim impact, defendants' rights

Marie Hess of Burlington is to get a new trial in the death of her husband, Jimmy, after a judge deemed a presentation biasing.
Marie Hess of Burlington is to get a new trial in the death of her husband, Jimmy, after a judge deemed a presentation biasing. (SARAH J. GLOVER / Staff Photographer)
Posted: August 02, 2011

For 17 minutes, a video depicting the life of slain Burlington Township Police Officer Jimmy Hess rolled in front of a crowded Mount Holly courtroom. A montage of photos and homemade movies showed glimpses of his childhood, his graduation, his fishing trips, his puppy - and finally his funeral and grave. Beatles songs, patriotic music, and hymns played in the background.

Was the professionally made video prejudicial to the killer, Marie Hess, who was about to be sentenced for murdering a husband she claimed had threatened her life? Or was it an appropriate way to illustrate the deep loss the family felt in 1999 after Jimmy Hess was fatally shot as he slept?

Two weeks ago, the New Jersey Supreme Court became the latest in a long line of courts to rule on whether a lengthy and very personal victim-impact statement is admissible.

Noting the video's "potential to unduly arouse or inflame emotions," the court said Marie Hess' lawyer should have objected.

The court vacated Hess' 30-year prison sentence, saying her lawyer also failed to mention evidence that she had been abused, leaving the judge with only the prosecutor's side of the case and the video. Hess, who remains in state prison, now faces a new trial.

In 2008, the Texas Court of Criminal Appeals overturned a murder sentence because a victim-impact video, set to Celine Dion's "My Heart Will Go On," included pictures of the victim playing soccer in first grade, among other images. The "implicit suggestion is that [the defendant] murdered this angelic infant; he killed this laughing, light-hearted child," that court wrote.

In 1991, the U.S. Supreme Court ruled victim-impact statements are acceptable at sentencing as long as they do not prejudice a defendant's rights. It set the stage for legal debate over where to draw the line.

The victims' rights movement swept across the country in the late 1970s, sparking the passage of a host of state and federal laws that allowed victims and their families the ability to participate in the justice system for the first time. Before that, the focus was strictly on the rights of the criminals.

Richard Pompelio, executive director of the New Jersey Crime Victims' Law Center, said a constitutional amendment adopted in 1991 in New Jersey provided more guarantees. Now, a victim-impact statement - testimony by a family member and photographs - would be a part of every sentencing hearing.

These statements give victims "some kind of face or voice" at the hearings, Pompelio said. "Victims are now placed on an equal footing with defendants," he said.

By the late 1990s, the statements included the use of videos.

Since then, courts have wrestled with how to balance the rights of victims against the rights of defendants. Courts are divided over the admissibility of the videos.

In the Hess case, the high court found fault with the length of the video and the "childhood photographs and music likely to appeal solely to emotion."

The New Jersey attorney general, whose office filed an amicus brief in the case, had urged the court to defer to the discretion exercised by the trial judge.

"Just as the technology has evolved, so has the forms of victim-impact evidence. Photographs, collages, videos, PowerPoint presentations, and displays of the victim's personal effects have been presented as victim-impact evidence at sentencing," the attorney general wrote. "The trial courts have the discretion to decide" whether they are fair.

Jim Strazzella, a criminal-law professor at Temple Law School, said some legal experts believe it's therapeutic to let victims and their families air their sorrow in court through the use of videos.

"Judges may well understand that victims need to get it out of their system" and may allow a video to be played before deciding whether it is relevant, he said. Afterward, a judge may choose not to consider it when determining the appropriate sentence, he said.

Pompelio, a lawyer whose teenage son was murdered in 1989, says victims and their families are entitled to express their loss, whether it's through video or a speech, and the trial judge should have the final say.

"Historically, victims had been shut out of the process," he said. Laws were changed "to allow victims the opportunity to give a statement," Pompelio said. "It's not to change a judge's decision at sentencing. I've never seen a judge swayed by these" statements.

Contact staff writer Jan Hefler at 856-779-3224 or

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