FOR IMMEDIATE RELEASE
PHOENIX—A coalition of individuals who provide criminal defense counsel to the accused in Arizona filed a federal lawsuit today to block the enforcement of a statute that restricts their constitutionally protected freedom of speech.
The challenged law prohibits criminal defense lawyers and other people working on the defense team from speaking to the victim of a crime without using the prosecutor’s office as a conduit for the communication. If the crime victim was killed or incapacitated, the communication ban extends to close relatives of the victim. No other state has a similar statute.
This lawsuit was brought by the nonprofit organization Arizona Attorneys for Criminal Justice (AACJ), five individual criminal defense attorneys who practice law in Arizona, and a private investigator who works with criminal defense lawyers on cases throughout Arizona.
As a practical matter, allowing a prosecutor to be the gatekeeper for communications results in almost no victims or family members speaking with criminal defense attorneys, according to the lawsuit. Plaintiffs state in the lawsuit that victims or their close relatives are almost never willing to hear from them after being counseled by the prosecution, cutting victims off from a dialogue with defense teams that can be beneficial for everyone involved. For instance, in capital cases, defense counsel can relate to the victim’s family why the death penalty is not the best option for the good of the surviving family members.
“Defense lawyers should not be required to get permission from the government in order to conduct a thorough investigation into their client’s case,” said Amy Kalman, president of AACJ, a statewide group of criminal defense lawyers, law students, and associated professionals dedicated to protecting the rights of the accused in the courts and in the Legislature. “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.”
“This law was intended to prevent the harassment and intimidation of victims, but it does much more than that by acting as a complete ban on any speech by criminal defense attorneys to victims,” said Kathy Brody, legal director of the American Civil Liberties Union of Arizona, which is representing the plaintiffs. “Criminal defense attorneys are not interested in harassing or intimidating victims and if they do, they’re already subject to prosecution under Arizona law and professional discipline.”
“Unmediated requests to speak with crime victims help ensure the proper functioning of Arizona’s criminal-justice system as a true and fair adversarial system that leads to reliable convictions,” said David A. Lane of the Denver-based law firm Kilmer, Lane & Newman, LLP, which is working with the ACLU of Arizona to represent the plaintiffs. “The ability to reach out directly to victims is also especially important in capital cases, when the views of the victim’s family can literally save a life.”
In addition to Brody and Lane, lawyers representing the plaintiffs include ACLU of Arizona Staff Attorney Brenda Munoz Furnish and Andy McNulty of Kilmer, Lane & Newman, LLP.
The lawsuit filed today and plaintiffs’ motion for a preliminary injunction are available here: https://www.acluaz.org/sites/default/files/aacj_v._ducey_-_complaint_and....