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Arizona defense attorneys can contact crime victims or their families, judge says

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By Howard Fischer
Capitol Media Services
PHOENIX -- A federal judge is barring Arizona from enforcing a 31-year-old law that prohibits defense attorneys from directly contacting crime victims or their families, calling it a violation of their constitutional rights.
And that could result in some people convicted of murder being sentenced instead to life behind bars if survivors, after speaking with defense counsel, choose not to push prosecutors to seek the death penalty.
Arizona voters approved a Victims Bill of Rights in 1990. 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 though the prosecutor's office. That includes not just the actual victims but also their family members.
But in a 50-page ruling, Judge Steven Logan said it restricts the speech of the defense team and their ability to represent their clients. He also said it improperly favors prosecutors who face no such restrictions.
The judge said that voiding enforcement of the law does not impair the Victims Bill of Rights.
He said victims and family members remain free not to speak with defense attorneys. And Logan said there is ample evidence that victims are made aware of their rights.
Logan also called the law unnecessary.
He pointed out that other states have similar protections for victims from having to speak with defense lawyers. Yet Arizona is the only state which makes them deal with this additional hurdle and inserts the ability of prosecutors to refuse to forward any correspondence from the defense team.
Finally, he noted, there is no evidence there is -- or ever was -- a problem that required state lawmakers to enact such a restriction on the rights of defense attorneys to approach victims.
"In fact, the chief counsel for the criminal division at the Arizona Attorney General's Office testified that he was not even aware of defense teams contacting victims prior to the statute's passage,'' Logan said. And he noted the law does not apply to victims in federal criminal cases, nor to cases pending in other states with victims who reside in Arizona.
"There is no evidence that those victims endure disrespectful or harassing conduct from defense attorneys,'' Logan wrote.
The lawsuit was brought by the American Civil Liberties Union on behalf of Arizona Attorneys for Criminal Justice, an organization of defense lawyers.
In filing suit, ACLU attorney Jared Keenan said the law "perpetuates the myth that prosecutors are the only ones that are looking out for the rights of crime victims. And that, he said, can have life-or-death implications.
Logan cited the testimony of one attorney who handles capital crimes.
He told the court 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 said, could lead family members to conclude that a decision by prosecutors to pursue the death penalty could cause them additional trauma.
What makes that significant, the attorney said, is that 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 a plea deal for life in prison.
Logan also said that speaking with survivors may help defense attorneys gather "mitigation evidence'' that the defendant should receive a life sentence rather than the death penalty.
Beyond that, the judge said that topics that defense lawyers want to discuss with victims "go well beyond -- and in fact do not include -- harassment or intimidation.''
"Having a fuller picture of the facts allows the defense team to better predict the client's likelihood of success at trial and may help resolve the case prior to trial,'' Logan said. "Or it may uncover exculpatory information showing that the defendant did not in fact commit the alleged crime.''
All that, the judge said, can be thwarted by the current law.
He acknowledged that prosecutors must pass along to victims a request by defense attorneys and their investigators for an interview. But they also must advise victims of the right to refuse.
"It bears emphasizing that the prosecutor need not convey any particular message from the defense team to the victim -- just the request for an interview -- so the defense team's specific messages are unlikely to reach a victim unless the victim consents to speak to the defense based on the prosecutor's correspondence,'' the judge wrote.
Logan said he was not swayed by claims by prosecutors that the law is a necessary protection for victims and their families.
"The bulk of the evidence before the court shows that contact with the criminal defense team is no more or less likely to traumatize a victim than contact with the prosecutor or any other participant in the legal system,'' the judge wrote.
"Certainly, not all defense-initiated contact with traumatize victims,'' he continued. "And there is evidence that some communication may be helpful to them.''
And there's something else.
Logan said if there is a concern that victims may not want to be directly approached, there is a way to do that.
"The state could provide victims with government-funded counsel,'' the judge said, lawyers who the defense attorneys could approach with requests to speak to the victims.
Logan said these lawyers, unlike prosecutors whose interests may be different than that of the victims, would have "certain fiduciary duties to the victims'' to act in their best interests. And those duties would include loyalty and obedience, duties that prosecutors do not owe to victims.
A spokeswoman for the Attorney General's Office said the ruling will be appealed.
"It is critical that we continue to protect crime victims and uphold the rule of law,'' said Katie Conner.
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On Twitter: @azcapmedia