PHOENIX (CN) — The state of Arizona defended before a Ninth Circuit panel Monday a law that prohibits criminal defense attorneys from contacting victims without going through the prosecutor’s office.
A federal judge overturned the law in 2022 in a lawsuit filed by Arizona Attorneys for Criminal Justice, a statewide non-profit made up of defense lawyers, law students and other associated professionals. The group says the law — which requires that all contact between a defense attorney and a victim in a given case be facilitated by the prosecutor so long as the case is active — violates the First Amendment rights of defense attorneys, and is too broad, restricting all speech rather than just illegal speech.
The law dictates that once a defense attorney initiates a request to interview a victim, the prosecutor is to notify the victim of the request, and remind them of their right to decline an interview. The law doesn’t require that the prosecutor forward any correspondence from the defendant or defense attorney to the victim.
Alexander Samuels, representing Arizona’s attorney general in the Monday morning appeal hearing, said the procedure ensures a victim’s rights are upheld. Without it, a defense attorney could catch a victim off guard when they may not know they’re allowed to refuse an interview, he said.
But the three judges on the panel seemed concerned with the one-sided implications of the statute.
“A prosecutor who wants to talk to a victim need not go through these steps?” asked U.S. Circuit Judge Andrew Hurwitz.
“That is correct,” Samuels said.
“So, what we have here is a disparate treatment of prosecutors and defense counsel,” the Barack Obama appointee concluded.
The case is about free speech though, not equal protection, Samuels countered, following up by telling the panel that the action regulated by the statute is professional conduct, not speech.
“This is about the practice of law,” he said.
U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, said speech isn’t stifled in this instance, because the victim is given the opportunity to agree to an interview. Though she seemed to change her tune by the end of the hearing.
“You are, in fact, the way you administer it, preventing speech,” she later told Samuels.
Jared Keenan, representing the defense attorneys, agreed. He said restricting the ability to approach a victim in person or even send one’s own letter rather than asking a prosecutor to do it stifles free speech.
Hurwitz asked if it would still be a constitutional violation if the prosecutor was required to follow the same rules as a defense attorney. Keenan said, yes, because the law would still stop an attorney from approaching a victim by their own volition.
Berzon suggested that the prosecutor be required to forward a defense attorney’s letter in addition to sending a note about the victims’ rights and the request for an interview. Keenan again agreed that would be better, but still insisted that attorneys should be able to contact a victim however they like.
“This statute prohibits a world of conduct and speech a defense attorney might want to have with a victim,” he said. He added that the requirement for the prosecutor to be present at and facilitate interviews in addition to the initial contact further violates free speech rights. He said defense attorneys are given a “government script” to ask questions.
“Well that’s a different case,” Hurwitz replied. He remained unconvinced that the issue is a First Amendment matter. “It may be unconstitutional because it denies equal protection,” but not because it violates the First Amendment, he said.
Though the law in question was permanently enjoined by the trial court, Arizona Criminal Procedures Rule 39 also requires that defense attorneys request victim interviews through the prosecution. Berzon suggested additional briefing on the applicability of Rule 39 to the issue.
Keenan said that isn’t necessary, because his group isn’t challenging Rule 39. He said that rule is specifically about “formal interviews” and depositions, whereas he is just advocating for general contact outside of prosecutorial oversight.
Samuels clarified that the statute doesn’t prohibit “incidental contact,” in which a defense attorney might come across a victim in public. It only prohibits intentional contact or communication relating to the active case.
The panel — rounded out by U.S. Circuit Judge Anthony Johnstone, a Joe Biden appointee — didn’t indicate when it will rule.
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