A Closer Look with Dorislee Gilbert

Dorislee Gilbert

Dorislee Gilbert is the Executive Director of the Mary Byron Project (MBP), a non-profit organization dedicated to enhancing justice to end intimate partner violence. Dorislee is an experienced attorney who is leading MBP’s appellate advocacy program providing appellate legal representation to survivors of intimate partner violence in civil appeals related to intimate partner violence. For fifteen years before joining MBP, Dorislee was a felony prosecutor in the Commonwealth of Kentucky. During that time she tried more than 25 cases before juries, handled more than 75 cases in Kentucky’s Appellate Courts, and argued multiple times before Kentucky’s Supreme Court. Dorislee has interacted with, conferred with, and assisted hundreds of victims of crime during her career. In 2019, she was named Assistant Commonwealth’s Attorney of the Year.

As someone who works with survivors, how do you believe Marsy’s Law will help current victims and survivors of crime?

I was recently involved in a criminal case with a victim after she requested assistance, in part, because the prosecutor in her case had previously—without notice to her—agreed not to oppose the defendant’s motion to be released on reduced bail. Fortunately, the judge heard from the victim and denied the motion. The defendant filed other motions for release from custody. I appeared with the victim at times during the court proceedings. On one of those occasions, the judge informed me that—contrary to his own wishes—Kentucky’s higher courts had instructed him through prior cases that the victim did not have a right to participate in the proceedings through an attorney. At that specific hearing, one of the issues was the defendant’s request for reduced bail. Thankfully, the judge heard the victim’s wishes and denied the motion for release, but there never should have been an issue about whether the victim could appear personally or by counsel to participate in proceedings that would directly impact her safety because they might lead to the release of the defendant.

In some ways, Mary Byron’s story is similar to Marsy Nicholas’. Both involve tragic murders of vibrant young women by their ex-boyfriends and a failure of the system to notify about the release of a perpetrator. In response to Mary’s death, a system called VINE (Victim Information and Notification every day) was created in 1994. VINE allows for automated notification to victims and other interested persons of events such as a criminal defendant’s release from custody. This system is widely used across the country, and through it, some of the notifications that will be required under Marsy’s law are already happening. VINE has undoubtedly saved the lives of people like Mary Byron and prevented terrifying confrontations with perpetrators like Marsy’s family experienced. Marsy’s Law secures the right to notifications like those provided by VINE that will arm victims and survivors of crime with the information needed to stay safe and to participate fully in court proceedings. In some ways, Marsy’s law mirrors Kentucky law that already requires prosecutors to notify, confer with, and educate certain victims of crime. What Marsy’s law does more extensively than current law is to give victims a voice in court in the criminal proceedings.    

In discussing the criminal justice system with victims and survivors, what have you found to be common themes/frustrations for those navigating the system?

The criminal justice system can be very frustrating for people who are victims and survivors of crime. The frustrations I hear most commonly expressed concern the length of time it takes for cases to move through the system, feeling like the prosecutor is not communicating with the victim effectively or taking their case seriously enough, and feeling as if once their case enters the system only the defendant seems to have any rights. While Marsy’s law won’t fix all of these frustrations, for some of them it will allow victims a voice. For example, in Kentucky, as proposed, Marsy’s law grants the victim “the right to proceedings free from unreasonable delay.” Certainly, there are all kinds of reasons beyond a court or prosecutor’s control that will cause reasonable delay of proceedings, but Marsy’s law grants a victim the right to question whether the delay is reasonable and demand less delay in the proceedings.

Which component of Marsy’s Law for Kentucky stands out most to you and why?

The portion of Marsy’s Law for Kentucky that most stands out to me is the provision that grants the victim the right to be present at the trial on the same basis as the accused. In my years as a prosecutor, I tried many cases and observed many others in which the victim was permitted to enter the courtroom to testify and then was required to stay out of the courtroom during the remainder of the trial. Meanwhile, the defendant and family were allowed in the courtroom the whole time. I couldn’t help but be aware of the impression that this left on the jury, who wasn’t told that the victim was not allowed to be in the courtroom. They were left to think that the victim didn’t care what happened at the trial. Then, throughout the trial, they observed the defendant and family’s reactions to the evidence and saw the concern of the defendant’s family for their loved one who might go to prison. What they didn’t get to see or get to know was that the victim desperately cared what happened and sat in a room in the courthouse the entire trial waiting for any news of what was happening inside those closed doors. In addition to any influence, the victim’s presence during the trial might have for the jury, for many victims and survivors of crime, being permitted to be present during the trial would allow them to better understand the criminal justice process and the handling of the crime against them.  Seeing how the evidence came in (or didn’t come in), how the case was presented and argued to the jury, and how the jury reacted to certain evidence might help a victim or survivor better accept the jury’s verdict. 

For example, it can be incredibly difficult to understand or heal after a survivor’s loved one’s killer is convicted of a crime less than murder, but knowing what evidence was admissible, what the jury heard and saw before making their decision, and seeing and hearing what other people besides the survivor knew about the crime can make it a bit easier to stomach a verdict that feels less than just. It doesn’t heal the hurt caused by a loved one stolen away through horrific circumstances, but it can minimize the additional hurt caused by the system.

Why are constitutional rights necessary as opposed to current statutes dedicated to crime victims’ rights?

Kentucky currently has a statutory crime victim's bill of rights. It provides many of the same rights to victims of certain crimes as Marsy’s law proposes for even more victims of crime. However, Marsy’s law provides additional rights, including the right to be present during the trial, the right to proceedings without unreasonable delay, and the right to seek enforcement of the victim’s rights in court. Granting some of these rights requires a constitutional amendment rather than a statute. For example, a victim or survivor who is not permitted to be present during the courtroom during a trial currently is generally prohibited from being present by a rule of evidence. Those rules are imposed by Kentucky Courts as part of their constitutional authority to manage courtrooms and proceedings. The legislature lacks the constitutional authority to alter or impose such rules. However, a criminal defendant is exempt from the rule because of his constitutional right to be present throughout the proceedings. If victims are given the right to be present during the trial through the constitution, they too will be exempt from the evidentiary rule’s requirement that witnesses in the trial not be present during the testimony of other witnesses in the trial.