In a May 9 press conference, County Attorney Bill Montgomery impugned criminal defense attorneys and the Arizona Attorneys for Criminal Justice (AACJ). He told his audience that he did not believe the lawsuit filed by AACJ, challenging certain provisions of the Arizona “Victim’s Rights Bill,” represented a valid desire to improve the justice system, but rather served as an attempt by defense attorneys to “play a game;” to be able to attack a victim’s rights to be free of “intimidation, harassment and abuse.”
He stated that a defense attorney’s obligation is only to the client, not to the criminal justice system. Further, he said he “never wanted to hear another president of (AACJ) say that defense attorneys were concerned with the justice system as a whole.”
Perhaps if Mr. Montgomery had reviewed Arizona Supreme Court Rule 42, ERs 3, 4 and 8 (ethics rules), he would have seen that, in fact, defense attorneys do have an obligation to the justice system. Our obligations are not just to our clients, although that certainly is the primary one. They are to make sure the turn of the wheels of justice don’t result in the wrongful conviction of people like Debra Milke, Ray Krone, and Andre Minnitt, among others. Our client is the Constitution. We wish prosecutors took their obligations to the constitutional rights of defendants as responsibly as do defense attorneys.
Most offensive of Mr. Montgomery’s assertions was that the goal of the lawsuit was to allow intimidation or abuse of a victim in an interview. Presently it is the Office of the County Attorney where interviews take place, in the presence of a deputy county attorney and/or a “victim’s advocate.” There is little likelihood of abuse and I have never heard of any. Our ethical obligations require us to treat everyone with courtesy and dignity. We take that seriously. The lawsuit is asking that we be allowed to comply with constitutional obligations to our clients, to search out and explore evidence and witnesses, without interference from the state.
I am a past president of AACJ. Until my retirement, I practiced in the field of criminal defense for more than 40 years. I never heard a complaint about my colleagues abusing a victim in an interview. That may be because prosecutors, who are legally required to convey to the victim a defense request for an interview, often ignore that request. Most prosecutors refuse to tell defense counsel if the request was conveyed to the victim, and if they do, they tell us the victim refused, knowing full well there is no way for us to determine whether it is true. (By case law in Arizona, we are prohibited from asking a victim in trial why they refused an interview.) This is yet another reason why we need direct access to victims and witnesses: The prosecutor’s office can be obstructive.
While ethical rules and cases prohibit an attorney from keeping evidence from opposing counsel, this is often done under the guise of “victim’s rights.” Prosecutorial misconduct has been documented frequently and almost always involves hiding evidence from the defense. The only attorneys mentioned in the U.S. and Arizona Constitutions are defense attorneys, who are devoted to making sure their clients get fair, constitutional treatment. It is the belief that a client is actually innocent that keeps us up at night. Despite the Arizona Rules of Criminal Procedure and the rules of ethical behavior, exculpatory evidence is frequently hidden. If anyone is offending the criminal justice system, it is prosecutors, and the judges who allow them to get away with ignoring the rules, especially those concerning evidence disclosure.
So, Mr. Montgomery, don’t paint defense attorneys as the “bad guys” in this system, or tell people that we have no obligation to the criminal justice system. Plenty of “bad guys” on your side of the courtroom are willing to do whatever it takes to convict an accused.
The defense bar consists of attorneys dedicated to justice for their clients and the system. They are as interested in just laws, and fairness within the justice system, as prosecutors may be. Defaming us is not going to deter us from meeting obligations to clients and the criminal justice system. Your attempt to publicly degrade defense attorneys’ obligations are simply a guise to allow prosecutors to control all evidence that a defense attorney should receive, unconcerned that your conduct may allow the conviction of innocent citizens.
— Eleanor L. Miller is past president of Arizona Attorneys for Criminal Justice.
The views expressed in guest commentaries are those of the author and are not the views of the Arizona Capitol Times.