AVCV project advocating for child-victims results in published case authority.

AVCV recently secured a ruling from the Arizona Supreme Court on two important victims' rights issues, seating of victims' counsel in court and whether restitution caps are required in plea agreements as a matter of due process. This decision required the Arizona Supreme Court to overrule three of their prior cases that predate the Arizona VBR.  

As part of our project advocating for child-victims, funded by the National Crime Victim Law Institute, the child’s legal guardian retained AVCV when the child-victim's rights were violated by the prosecuting agency. Initially, the prosecuting agency did not view the child-victim in this case to have legal status as a victim despite the express statutory provision that gives siblings of murder victims legal standing to assert and enforce victims' rights. A.R.S. § 13-4401.19. Thus, the prosecuting agency had arranged for the child-victim to submit to defense interviews with defense attorneys for each of the four defendants in this case. Additionally, it negotiated the first plea offer in the case without conferring with the child-victim and without any provision addressing restitution. AVCV filed a motion to reexamine the plea agreement since the child-victim's constitutional right to confer with the prosecution about the resolution of the case had been violated. The prosecutors filed a response arguing, despite A.R.S. § 13-4401.19, that the sister of a homicide victim was not a victim as there could only be one victim in a homicide case. Additionally, their office had already appointed someone from their victim services division as the victim representative for the murdered child. The trial court agreed with the prosecutors. AVCV filed a special action with the Arizona Court of Appeals. After briefing and oral argument on the issue, the Arizona Court of Appeals took the matter under advisement. While the case was pending in the Arizona Court of Appeals, the trial court noted that its ruling that AVCV's client was not a victim had not yet been reversed by the Court of Appeals; thus, the child-victim would not be permitted to be present during the trial for one of the defendants until after she testified. In an effort to ensure the child-victims constitutional right to be present at any of the criminal proceedings were not further violated, AVCV asked the trial court to stay all proceedings against all of the defendants in this case until after the Court of Appeals issued its decision on whether or not AVCV’s client was a victim. The request for a stay was denied. AVCV then sought a stay from the Court of Appeals. Rather than granting AVCV's request for a stay, the Court of Appeals issued an immediate order that AVCV's client was indeed a victim under Arizona law and was entitled to assert any and all constitutional and statutory rights afforded to victims. The Court of Appeals order was followed up with a published opinion holding that the sibling of a homicide victim is a victim and that there can be more than one victim in a homicide case. The Court of Appeals directed the trial court to ensure the child-victim had an opportunity to confer with the prosecution about the plea agreement. 

When conferring with the prosecution, victim’s counsel noted that the plea agreement did not address restitution. A provision addressing restitution was added to the plea agreement. Around this time, two other defendants were offered plea agreements. AVCV advised the prosecutors that the child-victim objected to any restitution cap in the plea agreements. Reluctantly, the prosecutors removed the cap. However, they advised that the trial court would not accept the plea without the caps. As the prosecutors indicated, the trial court would not accept plea agreements without caps; thus, the prosecutors and defense attorneys agreed to cap restitution at $500,000. During the change of plea and sentencing hearings, AVCV objected to the restitution cap arguing that it was an impermissible waiver of victims' rights and that it violated the VBR. The trial court upheld the caps relying on a line of cases that predated Arizona's VBR. Additionally, AVCV's counsel was then directed to sit in the gallery and informed that she would be called into the well when the court was ready to hear from her. AVCV filed a special action with the Arizona Court of Appeals. The Court of Appeals declined jurisdiction over the matter. AVCV then filed a petition for review in the Arizona Supreme Court. Review was granted and oral argument was held on November 20, 2019. 

The Court filed its opinion on August 4, 2020, holding “that the practice of placing a cap on the amount of restitution a defendant may be liable for in a plea agreement, without the victim’s consent, violates the right to restitution. There is no constitutional requirement to inform a defendant of a specific amount of restitution or to cap the amount of restitution that a court may order, and thus we overrule State v. Lukens, 151 Ariz. 502 (1986), State v. Phillips, 152 Ariz. 533 (1987), and State v. Crowder, 155 Ariz. 477 (1987) for that proposition.” The Arizona Supreme Court further held “that a lawyer representing a victim has a presumptive right to sit in front of the bar in the courtroom during a proceeding where a victim’s constitutional or statutory rights are at issue.”

This ruling represents a victory for victims of crime throughout Arizona as it finally resolves the practice of allowing the government and a criminal defendant to negotiate a right that is personal and individual to crime victims, the right to restitution. Further, it supports victims’ right to have their own counsel by recognizing the important role of victims’ attorneys in asserting and enforcing victims’ rights throughout a criminal prosecution.