By Howard Fischer
Twitter: @azcapmedia

PHOENIX — A federal appeals court has given the go ahead for criminal defense attorneys in Arizona to challenge a state law that prohibits them from directly contacting crime victims.

In a new ruling, the 9th Circuit Court of Appeals overturned a lower court decision declaring that members of the Arizona Attorneys for Criminal Justice have no legal standing to try to void the restriction because they suffer no injury from it. The appellate judges said just the fact the lawyers can have their license to practice law suspended or revoked for violating the provision gives them a basis to sue.

The ruling, however, does not void the statute. Instead, it simply sends the case back to a trial judge to consider its constitutionality.

Katie Conner, spokeswoman for Attorney General Mark Brnovich, said he will fight their efforts, calling the statute in question a “commonsense law that protects victims by limiting direct contact with criminal defendants and their attorneys.”

But attorney Jared Keenan of the American Civil Liberties Union, which sued on behalf of the defense attorneys, told Capitol Media Services the decision by the appellate court to allow the challenge to the law is important.

“What we’ve seen is prosecutors using this statute as more than a shield to allegedly protect crime victims,” he said. “They use it as a sword to sort of undermine the truth-seeking function of our criminal justice system.”

Hanging in the balance is a statute that says defendants, their lawyers and their investigators can initiate contact with crime victims only through the prosecutor’s office. That includes not just the actual victims but also family members.

Prosecutors are required to pass on the requests. But they also can advise those the lawyer wants to interview that they have the legal right to simply say “no.”

The basis is the Victims’ Bill of Rights, a 1990 voter-approved constitutional amendment designed to spell out the rights of crime victims and their families. It includes things like the right to be present during all stages of the trial, to be notified of all events, and to refuse to be interviewed.

In filing suit against Brnovich and Gov. Doug Ducey, the defense attorneys and the American Civil Liberties Union called the requirement to funnel requests for contact “an unconstitutional licensing requirement and prior restraint on speech.”

What it also does, according to the lawyers, is make it difficult for them to meet their obligation to provide effective assistance to their clients.

More telling, they argued to U.S. District Court Judge Steven Logan, is that the additional hurdle interferes with their ability to save the life of a client convicted of murder. That’s based on their contention that they are required to try to persuade family members not to push for the death penalty, wishes that prosecutors may follow.

Logan,in dismissing the case, did not delve into the merits of the complaint.

He instead accepted arguments by Assistant Attorney General O.M. Skinner that the federal court had no authority in this area. And the judge said any challenges by defense attorneys over their right to contact a victim need to be made not as a challenge to the law but on a case-by-case basis.

“In any case where a plaintiff (attorney) represents a criminal defendant, that attorney can immediately raise the First Amendment challenge through a simple motion seeking leave to initiate contact with a victim directly,” Skinner argued.

But the three-judge appellate panel said that ignores the fact the attorneys put themselves in professional jeopardy if they reach out to victims without running their requests through prosecutors. And they said giving defense lawyers the legal relief they seek “would also bar Brnovich from relying on (the law) to stand in the way of defense attorneys’ direct communications with victims in cases prosecuted by his office.”

No date has been set for a trial back in federal court in Phoenix.