This May, the American Civil Liberties Union (ACLU) filed a lawsuit against the state of Arizona, alleging that a particular statute in the state's Victims' Bill of Rights is unconstitutional. Currently, the law states that defense attorneys are not permitted to speak with a victim of a crime or their family unless the contact is initiated through the prosecutor's office. The defendants and any investigators associated with the defense are likewise barred from speaking to the victim or their family.
The lawsuit is also supported by the Arizona Attorneys for Criminal Defense, as well as the ACLU. Their case states that the current law “acts as an unconstitutional licensing requirement and prior restraint on speech.” They point out that victims and their families almost never decide to speak with the defense after being counseled by the prosecutor. This, they argue, prevents the defense from being able to work effectively for their client, including protecting them from the death penalty.
One of the ACLU attorneys participating in the lawsuit, Kathleen Brody, wrote, “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.”
When the defense is barred from speaking with the victim, the ACLU and defense attorneys argue, it is difficult to take their wishes into consideration and work with them. In addition, if victims and their families speak with the defense and decide not to pursue the death penalty, “prosecutors will sometimes acquiesce to the wishes of the victim's family and drop their demand for death.”
This law was originally put into place in 1991 when the Crime-Victims' Rights Implementation Act went into effect. This act included the voter-approved Victims' Bill of Rights, drafted in 1990. The Victims' Bill of Rights lays out fundamental protections for victims of crimes, including the right to be present during all stages of a trial and to be notified of all relevant events.
The statute in question, which prohibits defense lawyers from speaking to victims, was designed to protect victims and their families from potential harassment, intimidation, or aggression from defendants' lawyers, but the ACLU and the Arizona Attorneys for Criminal Defense point out that there are already legal and professional punishments put in place to discourage this kind of behavior. They believe that the law is redundant and, moreover, restrictive on free speech and successful negotiation.
“This law is a textbook example of unconstitutional prior restraint on speech and makes it very difficult for lawyers to meet their obligation to provide effective assistance of counsel to criminal defendants in Arizona,” said Amy Kalman, president of the Arizona Attorneys for Criminal Defense. The group is seeking a declaratory judgement that the statute violates the First Amendment, which would place an injunction on its enforcement.
Both attorneys at Sherick & Bleier are active members of Arizona Attorneys for Criminal Justice. Attorney Steven P. Sherick is a past president of the organization and Adam N. Bleier is the current secretary of the organization.