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Filed 10:00 p.m.
05.22.2018

The Billionaire's Crusade

Broadcom's Henry Nicholas is spending millions to give victims a bigger voice, but not everyone agrees.

Henry T. Nicholas III, left, and his mother, Marcella Leach, with a photo of his sister, Marsy Nicholas, during the Orange County Victims' Rights March and Rally in 2013. Bret Hartman/Associated Press for MarsysLawForAll.org

Henry Nicholas III, the billionaire co-founder of semiconductor firm Broadcom, is known for his flamboyant tastes. Beyond the standard trappings of the uber-rich — private jets, multi-million dollar homes, a Lamborghini — there was the 4,000-foot warren of tunnels and lavish man-caves he had built beneath his California mansion.

It’s less well-known that Nicholas is using his fortune to bankroll another pet project: changing state constitutions across the country in the name of victims’ rights.

Six states have now passed some version of Marsy’s Law, which Nicholas shaped and named for his murdered sister. He has spent upwards of $25 million so far, according to campaign filings, and plans to spend millions more in pursuit of his goal: to get the amendment passed across the country and ultimately, onto the U.S. Constitution.

Marsalee Nicholas was shot and killed by a jealous ex-boyfriend in Malibu, Calif., in 1983.

He’s on his way. This November, the measure will be on ballots in five more states: Oklahoma, Nevada, Kentucky, Georgia and Florida. At least five additional states are considering putting Marsy’s Law before voters in upcoming election seasons — efforts backed almost single-handedly by Nicholas.

The measure promises an equal voice for victims in a system where the rights of defendants are constitutionally guaranteed. “We can all agree that no rapist should have more rights than the victim,” the Marsy’s Law website says. It is meant to protect people who have suffered a good deal already, and its appeal to voters is obvious: who is against victims?

But however well-intentioned, Marsy’s Law is drawing criticism from some unexpected quarters, including prosecutors and some victims’ rights advocates.

A clip from the Los Angeles Times about Marsalee Nicholas's death.

The measure grants all victims — including of misdemeanors and other low-level offenses — a sweeping array of rights, including the right to be notified of any public hearing involving the crime, the first of which can happen within hours of arrest. It also has drastically broadened the definition of “victim” to include, in some states, “any spouse, parent, grandparent, child, sibling, grandchild, or guardian” of that person.

Given the vast number of low-level crimes that happen every day, Marsy’s Law is expensive and almost impossible to follow to the letter. Some prosecutors and victims’ rights groups complain that its provisions can hinder investigations and dilute services for people who need it most. Defense attorneys argue it upends the presumption of innocence, giving alleged victims a say before it has been established that there was a crime in the first place. Using Marsy’s Law, prosecutors have blocked defense attorneys from getting basic information, such as where a crime took place.

South Dakota — where voters approved the measure overwhelmingly in 2016 — has experienced these problems most acutely.

Sheriffs stopped asking for the public’s help in solving crimes-in-progress to avoid inadvertently revealing a victim’s location. Prosecutors spent hundreds of thousands of dollars beefing up staff to find victims of low-level misdemeanors, such as vandalism or shoplifting­. Defendants have spent additional days in jail because the prosecutor can’t locate victims in time for an arraignment, according to prosecutors and defense attorneys.

The new law “sounded good, but it didn’t end up being what was advertised,” Mark Mickelson, speaker of the South Dakota House of Representatives, told The Marshall Project.

Nicholas’s 21-year-old sister, Marsalee, was in her final year of college in 1983 when she was shot and killed by a jealous ex-boyfriend.

By all accounts, the system was not kind to Nicholas’s family. He has said his mother stopped by a local grocery store shortly after Marsy’s death to buy a loaf of bread. “She went up to the checkout stand, and there was my sister’s murderer, staring her down,” he told the Orange County Register in 2010. The family had no idea her killer had been released on bail.

Their experience came on the heels of a Reagan-era task force that called the system’s treatment of crime victims “a national disgrace” and urged states to pass a wide range of new protections. By 2014 — the year before Nicholas began his national push — every state had done so, 18 in law and 32 as constitutional amendments. Many 80s and 90s–era amendments made broad declarations such as treating victims with “dignity, respect and sensitivity” and left the definition of “victim” to the legislature.

But advocates said the protections didn’t go far enough: what did “dignity” mean, anyway, and what was their recourse if their rights were ignored?

Nicholas realized that his wealth gave him an opportunity “to give back,” said Gail Gitcho, a spokeswoman for Marsy’s Law for All, the group Nicholas founded to drive his effort. He declined to be interviewed for this story.

Nicholas spent more than $4.8 million on a 2008 campaign in his home state of California to pass one of the most expansive victims’ rights amendments ever enacted. It was the first to include a wide range of relatives under the definition of “victim” and granted them 17 specific protections, plus the right to ask for a “do over” if their rights were ignored. Late last year, for example, the mother of a California woman injured by a drunk driver objected when she wasn’t notified of the driver’s guilty plea. She had wanted to speak at the sentencing. The judge threw out the plea.

Henry Nicholas III, the billionaire co-founder of semiconductor firm Broadcom, in one of the tunnels running under his home.

In 2012, Gilberto Guzman was fatally shot at age 41 by a stranger outside a wedding in Los Angeles. He had four children, the youngest 6 months old. Guzman’s brother, David Guizar, knew his family was entitled to certain rights, but it took Guizar months of “calling, calling, pesking my way through the situation” to reach a helpful person in the prosecutor’s office, he said.

When he finally did, he said, hearing about the case as it proceeded and making a statement at the sentencing brought him and his brother’s widow tremendous peace of mind. Even to this day, it feels good just to say his brother’s name out loud. “This is probably the closest that we have to restorative justice, that families are given the opportunity to say how they feel,” he said.

But these experiences aren’t necessarily common. Taking advantage of Marsy’s Law can be difficult without a lawyer, and aside from a handful of pro bono law firms and nonprofits, victims’ rights attorneys are costly to hire.

“We hear this frustration on a daily basis,” says Mariam El-menshawi, director of the Victims of Crime Resource Center at the University of the Pacific law school in Sacramento. El-menshawi supports the goals of Marsy’s Law but said she and others in the victims’ rights community believe the rights are not widely-known enough or accessible enough to the average crime victim.

On the surface, the measure’s language seems plain: law enforcement officials have to reach out to the people directly harmed by every crime and a wide range of their relatives within hours of a crime so they can appear in court if they choose.

But prosecutors in some of California’s largest cities told The Marshall Project they don’t do that except in crimes where the victim is killed or seriously injured. Officials in San Diego and Los Angeles say they send information by mail to victims of less serious crimes and are available to help if they respond but concede it’s unlikely the notices arrive in time for the first court appearance.

Gitcho, the Marsy’s Law spokeswoman, says there is inevitably a learning curve once a measure has been implemented. “In some places Marsy’s Law represents a big cultural change within the criminal justice system. Change doesn’t happen overnight.”

As in California, prosecutors in North Dakota have taken a pragmatic approach. Aaron Birst, a spokesman for the state prosecutors’ group, says counties don’t have the money to hire additional staffers to reach out to every victim personally. For now, taxpayers have spent more than $800,000 upgrading the state’s automated victim-notification system, which prosecutors hope complies with the law well enough.

Ladd Erickson, State’s Attorney in McLean County, North Dakota, is one of them. “If you follow the literal reading of Marsy’s Law, we are violating it all the time,” he says.

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In 2012, victims’ rights advocates in Illinois reached out to Nicholas after trying unsuccessfully for years to strengthen protections in their state. “We thought, ‘We’ve tried it our way for this long, and we’re not getting this groundswell,’” says Polly Poskin, executive director of the Illinois Coalition Against Sexual Assault. Nicholas contributed $4.3 million, which paid for, among other things, a public relations firm and a large-scale TV, radio and internet ad campaign. The measure passed in 2014.

“After Illinois was passed, there was a feeling of momentum,” Gitcho said. Nicholas established Marsy’s Law for All in 2015, and began by targeting North Dakota, South Dakota and Montana — all of which have a direct-to-voters ballot process that bypasses the legislature.

In these states, and then in Ohio, where the measure passed last year, the national group brought in its model language, hired professional signature-gatherers and public relations firms, made six- and seven-figure ad buys, and tapped a Republican campaign strategist or insider to lead the charge. In one spot that aired in several states, “Frasier” actor Kelsey Grammer advocates for Marsy’s Law by recounting the murders of his father and sister decades ago.

In the Dakotas and Montana, almost every player in the criminal justice process opposed the law. Even victims’ groups rallied against the measure, concerned that the broad definition of victim would drain resources or violate privacy in sexual assault cases. The measure passed handily in all four states, although it never went into effect in Montana because of a technical issue.

The national group concedes their tactics in the Dakotas and Montana led to problems and said they’ve made a greater effort to engage more key people in other states.

In Ohio, this meant collaborating early with the Ohio Crime Victim Justice Center, which brought in other victims groups. Marsy’s Law “provides victims with a backbone to hold the justice system accountable,” says Liz Poprocki, who heads the the Ohio Victim Witness Association, which supported the measure.

But many other important players — such as the state public defender and prosecutors’ associations — were left out after they opposed the measure.

Nancy Neylon, executive director of the Ohio Domestic Violence Network, said she worried there wouldn’t be enough money to fulfill the promises being made to victims and the measure could dilute the state’s crime victims’ assistance fund. But “it was pretty much a done deal when I heard about it,” she says. “There was no way to stop it. There was so much money behind them.”

As Nicholas bankrolls the measure around the country, his own history with the court system has left him open to charges of hypocrisy. He’s been dogged for more than a decade by allegations that his outsize personality fueled darker tendencies: using cocaine and ecstasy, hiring prostitutes for himself and others, and inflicting emotional and physical abuse on partners and employees.

In 2008, Nicholas was indicted on federal securities fraud and narcotics charges. Court documents painted a sordid picture, including employees who bought drugs and hired prostitutes for Nicholas, his guests and customers. In a sworn statement included in the case, an employee said Nicholas assaulted several staffers over minor issues, including shooting him with an air gun.

Nicholas pleaded not guilty and denied wrongdoing. Both cases were eventually dropped when the fraud case was thrown out. In a blistering decision, a judge determined that prosecutors had unduly influenced witnesses with threats and intimidation. The employee who alleged abuse by Nicholas was not one of the witnesses named in the judge’s decision.

Nicholas’ ex-wife accused him of threatening to have her killed, according to a 2008 petition she filed during the couple’s acrimonious divorce. He has called her accusations “distorted, inaccurate, and breathtakingly sensationalistic” and a publicity stunt.

Henry Nicholas III and his former wife, Stacey, in 2004. She later accused her husband of threatening to have her killed.

In 2016, two different ex-girlfriends went to the courts: One sued Nicholas alleging, among other things, assault and battery and emotional distress; this case was later dropped. In court documents, Nicholas said his ex-girlfriend’s lawsuit was filled with falsehoods. Another ex was granted a temporary protective order after telling a judge that Nicholas rubbed feces in her face and punched her in the head. In a police report taken after the incident, the responding officer said he saw no evidence of assault. Nicolas denied his ex-girlfriend’s story.

Accusations that Nicholas routinely hired prostitutes surfaced in the federal indictments and in three separate civil suits, one of which was later dropped. Nicholas has never been charged with any prostitution-related offense.

That history troubled Renny Cushing, a New Hampshire state legislator whose father and brother-in-law were murdered and who has been a leader in victims’ rights causes for almost two decades. Cushing said he harbored deep concerns when Marsy’s Law came to his state this year. Although Cushing voted in favor of sending the measure to voters, he said he was uncomfortable with the victims’ rights movement accepting funding from a man with Nicholas’s history.

“Elevating somebody who is a victimizer to the leader and the savior of the crime victims’ movement makes my stomach turn,” Cushing said. In April, the New Hampshire House of Representatives voted down the measure by a 5-to-1 margin, a rare defeat for Nicholas.

Emilio Gonzalez, Nicholas’s personal attorney, said it was unfortunate to see Nicholas’s efforts “smeared by the dredging of old accusations from discredited sources.” He told the Marshall Project, “we again deny these past stories and vow to fight for victims.”

In South Dakota, lawmakers are trying to make some changes after hearing from people like Lynne Forbush.

Forbush’s husband, Mike, was killed on his way to work last August after his car was hit head-on by a teenage driver who crossed a state highway centerline. When Forbush called the highway patrol to get a copy of the accident report, she was told she couldn’t have it. Someone had invoked Marsy’s Law’s privacy provision.

Forbush was confused: who had invoked that right? Who was the victim here? But no one would tell her.

In January, Mark Mickelson, speaker of the South Dakota House of Representatives, introduced a bill that would have put a repeal of Marsy’s Law before voters.

In February, Forbush told her story to the legislature after Mickelson, the House speaker, proposed a repeal of Marsy’s Law. Forbush finally got access to her husband’s crash report by hiring a lawyer, but she still doesn’t know why it was withheld in the first place.

“If they’re going to put a law in place,” she said of local lawmakers, they should ensure “it really helps the people of the state, and not some gentleman who is on a mission.”

Strategists from the national Marsy’s Law group intervened in the repeal bill, first running a social media ad campaign against Mickelson and then negotiating a compromise that would leave a revised version of the measure in place.

The new measure narrows the definition of victim somewhat and makes several of the provisions opt-in, so law enforcement doesn’t waste time locating victims who don’t want to participate. The national group agreed to back this new initiative with ads.

It is on primary ballots in June.