Saying lives are at stake, criminal-defense attorneys are trying to overturn a provision of state law that keeps them from directly contacting crime victims and their families.
In a lawsuit filed Monday in federal court, the attorneys and the American Civil Liberties Union are challenging the statute, which says defendants, their lawyers and their investigators can initiate contact only through the prosecutor’s office. That includes not only the direct victims but also family members.
Prosecutors are required to pass on the request — along with advising them they can simply say “no.”
At the very least, the lawsuit charges, that infringes on lawyers’ free-speech rights.
“It acts as an unconstitutional licensing requirement and prior restraint on speech,” the legal papers charge.
But the core issue, according to the lawyers challenging the law, is that the additional hurdle could prevent them from saving the life of their client.
The legislation has its roots in 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 and to be notified of all events.
Based on that, state lawmakers the following year adopted some other provisions, including that provision against having to speak with defense lawyers and having requests funneled through prosecutors.
ACLU attorney Kathleen Brody said the implications can often be life and death.
“In a capital case, the defense team’s duty to investigate often includes making overtures to the family of the deceased in an effort to understand whether they desire the death penalty for the perpetrator or would be satisfied with a lesser sentence, such as life imprisonment without parole,” she wrote in the legal pleadings. Brody noted that at the time of sentencing, survivors are entitled to make statements to the jury.
“If defense counsel can persuade the victim’s family not to desire the death penalty, it can literally save the life of a defendant,” she said.
“In addition, prosecutors will sometimes acquiesce to the wishes of the victim’s family and drop their demand for death.”
But Brody said it doesn’t stop with the fate of the specific defendant on trial. She said it could help effectively repeal the death penalty, if not on the books then at least in practice.
“In a number of states, the unofficial repeal of the death penalty has been achieved by criminal defense attorneys who convince family members of victims in capital crimes to speak out in opposition to the death penalty, thereby pressuring prosecutors and the public to abandon capital prosecution,” Brody wrote. “Without this important speech on a matter of grave public concern, the political campaign for the passive repeal of the death penalty can be significantly hampered.”
Attorney General Mark Brnovich, named as a defendant in the lawsuit, said late Monday that he had not seen the legal papers and could not comment.