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Victims' rights push in ND has powerful backers - and powerful opposition

FARGO -- Pam Perleberg says her brother, Donnie, wasn't a person to send greeting cards, but he gave her one 10 years ago when she was going through chemotherapy treatment for cancer. As the Fargo woman recently combed through mementos of her lat...

Pam Perleberg of Fargo had her brother Donnie's signature tattooed to her ankle on his birthday Thursday, Feb. 11, 2016, at No Coast Tattoo in Fargo. Dave Wallis / The Forum
Pam Perleberg of Fargo had her brother Donnie's signature tattooed to her ankle on his birthday Thursday, Feb. 11, 2016, at No Coast Tattoo in Fargo. Dave Wallis / The Forum

FARGO -- Pam Perleberg says her brother, Donnie, wasn't a person to send greeting cards, but he gave her one 10 years ago when she was going through chemotherapy treatment for cancer. As the Fargo woman recently combed through mementos of her late sibling -- who was shot dead at a cousin's wedding reception last fall -- she came across that very card with a handwritten sentiment and his name; signed, she says, with the usual "swoopy D."

It dawned on her right then that on Feb. 11, when Donnie should have been celebrating his 42nd birthday, she would get a tattoo of his signature as a way of cementing their bond, forever. As she spoke, her pain and sense of loss were palpable.

"It's a rotten situation," Perleberg said, pausing. "It doesn't take much to trigger tears."

Donnie, a farmer from Pingree, was shot from behind at the Eagles Club in nearby New Rockford on Sept. 6, 2015, as he sat next to a woman who the alleged shooter, David Troske, had once dated. According to court records, Troske then fired multiple shots at the woman. She survived, but Donnie died at the scene in that community of 1,400.

In the days that followed, Pam Perleberg expected to hear from Eddy County State's Attorney Travis Peterson, who would be trying the case.

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Instead, after a month of wondering what was happening, she called the prosecutor.

"I'm like, 'Don't you want to hear from us? You're defending my brother.' He said, 'I'm defending the state, not your family,' " Perleberg recalled.

She later asked to meet the prosecutor in person before the defendant's preliminary hearing.

"No response," Perleberg said. "I think he just feels he doesn't need to have a personal connection with us. Why wouldn't you?" she wondered.

Attempts to reach Peterson for comment were unsuccessful.

The experience prompted Perleberg to get behind the push for a proposed ballot measure called Marsy's Law that supporters say would give crime victims more of a voice.

"Even sitting in that hearing for the first time, I felt like an outsider, because we were clueless as to what was going on," Perleberg said.

The process of gathering signatures to put the measure on the November ballot is expected to begin next week.

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'Second-tier citizens'

Marsy's Law is already in effect in California and Illinois, and versions of it are expected to be voted on late this fall in North Dakota, South Dakota, Montana, Hawaii, Nevada, Georgia and Kentucky.

It's named for a California college student who was killed by an ex-boyfriend in 1983. A week after the murder, after visiting her daughter's grave, the woman's mother was confronted by the accused killer. She had no idea he'd been released on bail.

Prompt notification to the victim of any release of the accused is one provision of Marsy's Law. Among others that would be added to the North Dakota Constitution include the right to be free from intimidation, harassment and abuse; the right to privacy, which includes the right to refuse an interview, deposition or other discovery request made by the defendant; and the right, upon request, to confer with the attorney for the government. The proposal also spells out a definition of a crime victim and requires that victims receive a Marsy's Card listing their rights.

Kathleen Wrigley, chairwoman of the North Dakota sponsoring committee and wife of Lt. Gov. Drew Wrigley, was herself a collateral victim of crime in 1991 when her brother, Philadelphia police officer Danny Boyle, was shot and killed in the line of duty.

Wrigley said crime victims in North Dakota often approach her, saying they feel like they're "second-tier citizens."

She said spelling out victims' rights in the North Dakota Constitution would put them on equal footing with defendants.

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Sponsoring committee member and attorney Shane Goettle of Mandan said as it stands now, crime victims are treated just like another witness. Other states are surprised North Dakota allows defense attorneys such "permissive access" to them, he added.

"We'd be stiffening that access to victims," Goettle said.

Prosecutors among opponents

That provision is the chief concern of the North Dakota Association of Criminal Defense Lawyers, according to its president, Ted Sandberg.

He predicted it will bring more cases to trial instead of being resolved through plea agreements, and said there's already enough adversarial give and take between prosecutors and defense attorneys.

"It will add another layer of conflict and I'm not sure that does any benefit," Sandberg said. "It will add cost, time and headaches."

Steve Mottinger, a criminal defense attorney in Fargo, doesn't think Marsy's Law is necessary.

"I just don't see too many situations, in my opinion, when victims are being harassed," he said. "I certainly don't do it."

He also wonders about gross sexual imposition cases, where there are often no witnesses, and whether the law would prevent attorneys from deposing a victim who says no.

Defense attorney Willie Kirschner described as "scary" a provision that guarantees a victim's right to be heard at trial. He said a victim could testify against an attorney's wishes.

"You talk about really confusing the proceeding," Kirschner said.

He said in the quest for a defendant to get a fair trial, Marsy's Law would "balance the scales in the wrong direction," and that a better solution would be for the state to put more money into victim/witness advocacy services.

The state group representing attorneys on the other side of courtroom also opposes Marsy's Law, saying a "vaguely worded constitutional measure" is the wrong approach.

Aaron Birst, executive director of the North Dakota State's Attorneys' Association, said a legislative route is appropriate.

"The right people are going off in the wrong direction," Birst said of the committee backing Marsy's Law. "Certainly, we support efforts to bring victims' rights issues to the forefront, but there's a better mousetrap."

Cass County State's Attorney Birch Burdick also doesn't agree with the constitutional approach.

"Once having done that, it's almost impossible to fine-tune it," he said.

He thinks existing victims' rights statutes, in combination with victim advocacy programs, are sufficient.

"I'm not sure in North Dakota that there's an itch that needs to be scratched," he said.

The stand by Burdick and other prosecutors puts them at odds with the North Dakota Sheriffs & Deputies Association, including Cass County Sheriff Paul Laney, who's on the Marsy's Law committee.

Laney said the few sheriffs in North Dakota who oppose Marsy's Law need to separate themselves from county prosecutors and look at it from a law enforcement perspective.

"We take an oath to protect victims of crime," Laney said, adding, "When you're the victim that's been preyed upon, it's pretty hard to say you're not part of the process."

Laney said while the law would mean more work for some agencies, that doesn't make it wrong.

Victim channels grief

After the petitions for Marsy's Law go out, supporters will need to gather 26,904 valid signatures by midnight July 11 in order for it to appear on the November ballot.

Perleberg said she will personally collect signatures and will use it as a way to channel her grief for something good.

It's hard for her to comprehend that Troske, a man her family has known for 40 years, stands accused of killing her brother Donnie -- a farmer, firefighter, father and grandfather.

Donnie's son, 20-year-old J.R. Perleberg, will take over the family farm near Pingree, putting to use the skills he learned alongside his dad. J.R. and his girlfriend recently had a baby boy, born three months after Donnie died.

"Poor little guy's never going to know his grandpa," Pam Perleberg said. "That breaks my heart."

Meanwhile, she awaits the outcome of the criminal case and a wrongful death civil lawsuit filed by J.R. against Troske -- wishing to fast-forward through it all to bring a resolution for her, her nephew and her mother.

"Just being thrown into this process is an absolute nightmare," Perleberg said. "It's like nobody ever anticipates this being your own life."

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