PHOENIX — A federal appellate court on Thursday reinstated an Arizona law that bars criminal defense attorneys from directly contacting crime victims or their families.
But the unanimous ruling by the 9th Circuit Court of Appeals leaves unresolved whether the blanket ban violates the constitutional rights of the lawyers. And Jared Keenan, an attorney for the American Civil Liberties Union who represents the defense lawyers, said a new lawsuit is being contemplated.
At issue is a law adopted in the wake of voter approval in 1990 of the Victims Bill of Rights. The constitutional amendment 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.
Based on that, state lawmakers the following year enacted a law saying defense 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 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.’’
The ACLU, on behalf of Arizona Attorneys for Criminal Justice and several individual lawyers, filed suit in 2017 to void the statute.
“It prevents First Amendment protected speech,’’ Keenan told Capitol Media Services as the case was going through the system. “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, something that already occurs 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.
A trial judge agreed, saying victims and family members remain free not to speak with defense attorneys. And Judge Steven Logan said there is ample evidence that victims are made aware of their rights.
But the three-judge panel said Thursday that even if they were to void the law, the attorneys still would be restricted by court rules against cold-calling victims and their families to get information to defend their clients in court. And that, wrote Judge Anthony Johnstone for the court, undermines any First Amendment argument about the law.
Keenan conceded the point. But he said the prohibition issue is much broader than simply gathering evidence.
And he said it has life-or-death implications.
For example, the law prohibits defense attorneys from contacting survivors of murder victims even just to explain to them about the nature of trials in which prosecutors seek the death penalty.
One attorney told the trial judge that if he could contact the relatives of crime victims he would explain that pursing the death penalty takes years, involves multiple sets of prosecutors over various stages, and requires more contact with the legal system. And that, the attorney testified, could lead family members to conclude that a decision by prosecutors to pursue the death penalty could cause them additional trauma.
That, he said, is significant.
He said the views of survivors are one of the primary factors in whether prosecutors seek a death sentence. And that means if family members drop their support for execution, the defendant is more likely to be able to get negotiate with prosecutors for a plea deal for life in prison.
The appellate judges, however, said that is not enough to overturn the whole law.
Johnstone said the there is a legitimate reason to keep lawyers from simply making contact with crime victims: protect them from abusive contact. Anyway, he said, even if the court were to void the law, the lawyers would still be subject to the court rules on victim contact.
That, said Keenan, still leaves unresolved the underlying questions: Do defense attorneys have a First Amendment right to contact crime victims and their families, and does that right supersede anything in the Arizona Victims Bill of Rights.
And he said that means the only way to get the court to address that question is to challenge not only the 1991 law but also the court rules governing attorney conduct. Keenan said that is now being addressed with the defense attorneys that sued.
