Filed on behalf of: Deborah Serrata

RACHEL H MITCHELL
MARICOPA COUNTY ATTORNEY
(FIRM STATE BAR NO. 00032000)

PAUL W AHLER
CHIEF DEPUTY
225 WEST MADISON STREET
PHOENIX, ARIZONA 85003
TELEPHONE: (602) 506-3800
(STATE BAR NUMBER 005379 )

PETITION TO AMEND Rule 39(b)(12), ARIZONA RULES OF CRIMINAL PROCEDURE
R-22-0045

MARICOPA COUNTY ATTORNEY’S OFFICE COMMENT IN OPPOSITION

William P. Ring
State Bar No. 012860
Elizabeth Burton Ortiz
State Bar No. 012838
ARIZONA PROSECUTING ATTORNEYS’ ADVISORY COUNCIL
3838 N. Central Avenue, Suite 850
Phoenix, Arizona 85012
Tel. (602) 542-7222
Fax. (602) 274-4215

R-22-0045: PETITION TO AMEND Rule 39(b)(12), ARIZONA RULES OF CRIMINAL PROCEDURE

Arizona Prosecuting Attorneys' Advisory Council's Comment in Opposition

Randall Udelman, Victim Rights Attorney, SBN 014685
P.O. Box 2323
Scottsdale, Arizona 85252-2323
(480) 946-0832
[email protected]

As a victim rights attorney who represents victims of crime by helping them work their way through the criminal justice system, please consider these remarks in opposition to the proposed Petition to Amend Rule 39(b)(12). I believe that the Petition to modify Rule 39(b)(12) eliminating (A) and (B) is premature and does nothing to protect and preserve the constitutional rights to which victims are guaranteed when voters passed the Arizona Victim Bill of Rights ("VBR"), Article II, Section 2.1 of the Arizona Constitution. The District Court opinion in Arizona Attorneys for Criminal Justice et al. v Brnovich et al., CV-17-01422-PHX-SPL (Nov. 2, 2022) preserves a victim’s right to refuse an interview but allows defense to initiate a request to communicate with the victim. Petitioner does not propose any alternatives to ensure that victims in fact actually know they have the right to refuse interview requests and any efforts to modify Rule 39(b)(12) creates the very real risk that a victim's right to refuse contact with defense attorneys or investigators or other defense representatives will become illusory. While the District Court certainly held that the prosecutor cannot act as gatekeeper for requests to communicate with victims, the Court did not suggest that a victim's right to refuse contact should exist in name only.

Removing the gatekeeper function that prosecutors held before the District Court outcome seems to open the door to the possibility of victim abuse that necessitated the adoption of the VBR over thirty years ago in 1991. Before making any decision that could lead to substantial unintended consequences to the detriment of victims of crime, it seems useful to wait for further appellate guidance. The Arizona District Court decision in Arizona Attorneys for Criminal Justice et al v. Brnovich et al, No. CV-17-01422-PHX-SPL is on appeal to the Ninth Circuit and at a minimum, any change to Rule 39 should await the outcome of all appeals.

To reiterate, I am concerned that by removing prosecutor assistance with a victim's right to refuse an interview entirely, victims face a substantial risk that they will not meaningfully know that they have the right to refuse contact with the defense. And while an appeal is pending, I do not believe it helpful to the rights of victims or to the entire criminal justice system to change Rule 39 in a manner that hides a victim right to refuse contact and has potential to make such a right illusory. So before adopting any rule change, I would respectfully suggest that this Court await the outcome before the 9th Circuit and possibly the Supreme Court. Removing Rule 39(b)(12) (A) and (B) without at a minimum replacing the mechanism for victims to receive meaningful notification that they can refuse contact requests by defense seems to create a different set of problems that likely existed before the VBR was adopted and could create more confusion.

For these reasons, I respectfully oppose oppose Petition R-22-0045 and urge this Court to reject it.

Joint Comment by Maricopa Public Defense Offices
620 W. Jackson, Suite 4015, Phoenix, AZ 85003
(602) 506-7711
[email protected]
AZ Bar #025997

Colleen Clase
Arizona Voice for Crime Victims (AVCV)
111 E. Taylor Street
Phoenix, Arizona 85004
[email protected]
office: 480-600-2661
cell: 480-789-9951

AVCV's Comment in Opposition to R-22-0045 Petition to Amend Arizona Rule of Criminal Procedure 39(b)(12)

Kate Milewski
AZ State Bar # 024877
Pinal County Public Defender
P.O. Box 2457
Florence, AZ 85132
(520) 866-7199
[email protected]


Pursuant to Rule 28(e) of the Arizona Supreme Court Rules, the Pinal County Public Defender respectfully submits this comment supporting the adoption of the proposed amendment to Rule 39(b)(12) of the Arizona Rules of Criminal Procedure. The protections of the First Amendment of the United States Constitution and Article 2, Section 6 of the Arizona Constitution. This Court should end the discriminatory practice of censoring a subset of lawyers and delete the requirement that all requests for victim interviews from the defense be communicated to the prosecutor.

The supporting comment of the Pinal County Public Defender is attached.

Filed on behalf of: Arizona Attorneys for Criminal Justice
Kathleen E. Brody (#026331)
[email protected]
MITCHELL | STEIN | CAREY | CHAPMAN, PC
2600 North Central Avenue, Suite 1000
Phoenix, AZ 85004
Telephone: (602) 358-0290
Facsimile: (602) 358-0291

Jared G. Keenan (#027068)
[email protected]
American Civil Liberties Union Foundation of Arizona
3707 N. 7th Street, Suite 235
Phoenix, AZ 85014
Telephone: (602) 773-6021