A lawyer for two top state officials wants a federal judge to quash a bid by defense attorneys seeking access to crime victims and their families.
In new court filings, Assistant Attorney General O.H. Skinner tells U.S. District Judge Steven Logan there is no legal basis for the claim by the Arizona Attorneys for Criminal Justice that they have a First Amendment free-speech right to approach crime victims, despite a law to the contrary. If nothing else, Skinner said attorneys don’t have the same First Amendment rights as everyone else, at least not when it comes to their role as lawyers for criminal defendants.
He also said that if the problem is with the Arizona law and how it is enforced, the challengers need to sue the people responsible for that — including state trial judges. And Skinner said any such challenge needs to be brought in Arizona courts when there is an actual dispute, not in a broad-based federal court attack.
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 the direct victims but also family members.
Prosecutors are required to pass the request on. But they can also 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 Gov. Doug Ducey and Attorney General Mark Brnovich, 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.”
More telling, they argued to Logan 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’re required to try to persuade family members not to push for the death penalty — wishes prosecutors may follow.
Skinner, in his new legal filings, told Logan he needs to understand the importance of the law before he’s tempted to void it.
“The impetus behind this constitutional amendment was that for too long victims of crime have been second-class citizens,” he wrote.
Skinner said arguments in favor of the measure would ensure that “victims would no longer be treated as just another piece of evidence.”
Assuming there’s a legal basis to challenge the law — a point Skinner is not conceding — he said it cannot be done by asking Logan to void it. Instead, he said, if a defense attorney is denied access to a crime victim or family, that should be raised on a case-by-case basis with the presiding judge.
“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 wrote.
Anyway, he argued, the request to block enforcement of the law is flawed.
Skinner said federal judges can grant injunctions only if those who file suit can show a “realistic danger” to themselves. But he told Logan there is no evidence that any criminal defense attorney is going to be prosecuted for breaking the law by directly approaching crime victims and their families.
“The statute specifies no civil or criminal penalties,” Skinner wrote. What that leaves, he said are “broad, unsupported, passive-voice allegations that defense attorneys and investigators have been subjected to professional discipline and criminal charges for violating the statute.”
No date has been set for a hearing on the state’s motion to dismiss the lawsuit.