Courtroom Strikes Down Ban on Defendants’ Attorneys Contacting Crime Victims (Besides By way of Prosecutors)


The Arizona regulation, which seems to be fairly uncommon among the many states, offers:

The defendant, the defendant’s legal professional or an agent of the defendant shall solely provoke contact with the sufferer by the prosecutor’s workplace. The prosecutor’s workplace shall promptly inform the sufferer of the defendant’s request for an interview and shall advise the sufferer of the sufferer’s proper to refuse the interview.

Choose Steven Logan (in yesterday’s Arizona Attorneys for Criminal Justice v. Ducey) concluded that this was a speaker-based restriction on speech that seems to be justified by the anticipated content material of the speech, and thus needed to be judged beneath strict scrutiny, which the regulation failed. The courtroom burdened that witnesses have each proper to refuse to speak to the protection staff, however the regulation “shouldn’t be ‘truly crucial'” to guard that, since “victims obtain ample discover of their proper to refuse a protection interview beneath a number of different provisions of state regulation.” As to defending witnesses from “intimidation, harassment, or abuse,”

Even when there have been proof of an precise downside, much less restrictive options—together with laws {of professional} conduct, the opportunity of courtroom sanctions, and the criminalization of harassment—already shield in opposition to harassment of victims with out burdening Plaintiffs’ First Modification rights. And in contrast to the Statute, these laws are focused in direction of speech that may violate the sufferer’s proper to be free from harassment; the Statute is overinclusive as a result of it restricts all defense-initiated speech to victims no matter whether or not it goes to the State’s curiosity in defending victims’ rights—making the Statute exceedingly overinclusive with respect to this curiosity.

The courtroom targeted on the rights of the defendants’ legal professionals and their brokers, not the defendants themselves, and that is mirrored within the injunction:

When particularly requested by the Courtroom on the Bench Trial, Plaintiffs acknowledged that they search to enjoin enforcement of the Statute solely in opposition to “attorneys and their brokers,” not in opposition to prison defendants themselves. Though Plaintiffs’ proposed type of injunction offers no such limitation, in mild of that reply and, extra importantly, the dearth of proof or argument relating to the First Modification rights of prison defendants and the truth that Plaintiffs are composed solely of attorneys and a non-public investigator who works on behalf of attorneys, the Courtroom will restrict its injunction to enjoin enforcement of the Statute solely in opposition to attorneys and their brokers.

{The Courtroom notes that the Statute prohibits “[t]he defendant, the defendant’s legal professional or an agent of the defendant” from initiating direct contact with the sufferer. However in mild of Plaintiff Robertson’s testimony that in prison protection circumstances, he at all times works on behalf of the prison protection legal professional, the Courtroom will enjoin enforcement of the Statute solely in opposition to attorneys and brokers of attorneys as a result of such an injunction will relieve Plaintiffs’ accidents in full.}

Congratulations to Jared G. Keenan (ACLU of Arizona, Kathleen E. Brody (Mitchell | Stein | Carey | Chapman PC), and David A. Lane (Killmer, Lane & Newman, LLP), who represented the plaintiffs. Due to Alex Satanovsky for the pointer.



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