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National Crime Victim Law Institute

State ex rel. Montgomery v. Padilla, No. CR2013-248563-001 DT, 2015 WL 5311205 (Ariz. Ct. App. Sept. 10, 2015).

September 17, 2015

The National Crime Victim Law Institute (NCVLI), with the assistance of our long-time partner and pro bono local counsel Randall Udelman of DeFusco & Udelman, PLC, recently filed an amicus brief in connection with appellate court proceedings in support of the position advanced by the victim’s attorney—another longtime partner of NCVLI—Colleen Clase of Arizona Voice for Crime Victims.  The victim’s petition for a special action and NCVLI’s amicus brief challenged the ruling of a trial court in Arizona that the victim’s attorney lacked independent standing to assert and seek enforcement of victims’ rights at the trial court level and was instead limited to relying on the prosecutor to convey the victim’s position and/or arguments to the court.  Wonderfully, Arizona’s Court of Appeals exercised jurisdiction to protect victims’ rights, vacated the trial court’s rulings, and affirmed victims’ independent standing to have their privately retained counsel assert and seek enforcement of their rights in court.

State ex rel. Montgomery v. Padilla, No. CR2013-248563-001 DT, 2015 WL 5311205 (Ariz. Ct. App. Sept. 10, 2015).  Defendant was charged with several offenses relating to sexual conduct and other activities with two child-victims.  During the pretrial stage of the proceedings, the prosecutor became concerned that defendant, who elected to represent himself, would offer evidence at trial that one of the child-victims made prior allegations of sexual abuse against another individual.  Further, counsel for one of the child-victims and the child-victim’s representative attempted to assert various rights on behalf of her clients, including victims’ rights in the context of cross-examination of the child-victim by the self-represented defendant and a protective order to preclude certain testimony that implicated the victim’s privacy interests.  The trial court ruled that the victim’s counsel did not have standing to argue her motions or participate in the proceedings independently to protect victims’ rights; instead, the trial court indicated that any issues would have to be raised before the court through the prosecutor.  The trial court further ruled that the child-victim’s statements relating to allegations of abuse committed by another individual were admissible at trial.  After the state obtained a stay from the trial court, both the state and counsel for the victim filed petitions for special action with the court of appeals.  The court of appeals exercised special action jurisdiction, noting that it is “particularly appropriate where the welfare of children is involved and the harm complained of can only be prevented by resolution before an appeal.”  After vacating the trial court’s evidentiary ruling, finding that defendant failed to meet his burden regarding two of the required showings, the court of appeals addressed the issue of victim counsel standing and participation, reiterating that “Under the VRIA, in asserting any right the victim holds, ‘the victim has the right to be represented by personal counsel at the victim’s expense.’”  The court of appeals clarified that the victim’s counsel has the right to seek an order to enforce victims’ rights before both trial and appellate courts and distinguished its holding in this case from an inapposite ruling in another Arizona appellate case that a victim’s counsel cannot “substitute for the prosecution in a restitution proceeding.”  As applied, the court of appeals held that the child-victim, through her attorney, had the right to object to defendant personally cross-examining the child-victim and to object to defendant eliciting testimony that implicated victims’ rights, including privacy rights.  The trial court’s contrary rulings were vacated and the case remanded for further proceedings consistent with this opinion.