PHOENIX — Criminal defense attorneys in Arizona are now free to challenge a state law that prohibits them from directly contacting crime victims and their families.
The U.S. Supreme Court has rejected a bid by Attorney General Mark Brnovich to overturn an appellate court ruling saying the lawyers have a right to sue. The justices did not explain their decision.
None of this actually voids the 1991 statute. But it does clear the way for members of Arizona Attorneys for Criminal Justice to argue to a federal judge that the provision is unconstitutional.
And even if they ultimately win, none of that actually will force crime victims to speak with defense lawyers. All it would do is remove the additional hurdle of having to funnel their requests through prosecutors.
There was no immediate response from Brnovich.
But the defense attorneys say they see overturning the law as allowing them to meet their obligation to provide effective assistance to their clients.
At issue is a statute that says defendants, their lawyers and their investigators can initiative contact with crime victims only through the prosecutor’s office. That includes not just the actual victims but also their 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.”
Jared Keenan of the American Civil Liberties Union, who argued on behalf of the defense lawyers, said the measure, which has no parallel in the other 49 states, has legal issues.
“It prevents First Amendment protected speech,” he told Capitol Media Services. “Any time the government imposes some kind of hurdle to your rights to speech, it’s problematic.”
Keenan said it’s also unnecessary.
“Victims are free to tell an attorney, or anyone else, that they simply don’t want to speak to them,” he said, even in the states that don’t have this kind of prohibition. All the Arizona defense attorneys want, said Keenan, is to be allowed to try to initiate those conversations.
He also said the issues are even more basic.
“By having this prohibition, it perpetuates the myth that prosecutors are the only ones that are looking out for the rights of crime victims,” he said. And that, Keenan said, can have life-or-death implications.
“There are many instances where prosecutors simply ignore the views of the victims when the views of those victims don’t coincide with what the prosecutor wants, which is generally the harshest penalty they can get in every single case,” he said.
And Keenan said a harsh sentence — or a death penalty — may not be wishes of the victims or surviving families.
A trial judge threw out the case, saying federal courts have no authority in this area. Anyway, Judge Steven Logan said if there are issues in pending cases they can be addressed one at a time rather than challenging the entire statute.
In overturning that decision, however, the three-judge panel of the 9th Circuit Court of Appeals said it’s not that simple.
The appellate judges said defense attorneys have an independent interest in voiding the law, separate from their representation of any one client. That’s because they put themselves in professional jeopardy if they reach out to victims without running their requests through prosecutors.
They also said ]giving the 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.”
That 1991 law actually is an outgrowth of the Victims’ Bill of Rights, a 1990-voter-approved state 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, rights that would remain undisturbed even if the defense attorneys ultimately win their lawsuit.
No date has been set for a trial on the merits of their claim.
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