Morehart v. Barton, No. 1 CA-SA 10-0126, 2010 WL 3177885 (Ariz. Ct. App. Aug. 12, 2010).
Defendant was indicted on five counts of first-degree murder and the state filed notice of intent to seek the death penalty. Defendant moved for –and the trial court granted – an ex parte hearing relating to mitigation discovery. The family members of the homicide victims filed a petition for special action challenging the trial court’s order on the grounds that it violated their constitutional and statutory right “to be present … at all criminal proceedings where the defendant has the right to be present.” Defendant opposed the petition, arguing that 1) Arizona Rule of Criminal Procedure 15.9(b) permits ex parte hearings where the need for confidentiality is shown; and 2) the victims’ presence at the hearing would violate his 6th Amendment right to effective assistance of counsel because it could lead to defense counsel abandoning avenues of potential mitigation in an effort to avoid putting the state or the victims on notice of the issue and/or existence of records for mitigation purposes. The court rejected defendant’s arguments. First, the court found that Arizona’s Constitution “unquestionably” gives victims the right to be present at all criminal proceedings, which include the mitigation hearing. The court noted that even if defendant had shown a legitimate need for confidentiality under Rule 15.9(b), the rule did not trump the victims’ constitutional right to be present. As to defendant’s second argument, the court acknowledged that there are certain instances where a court must weigh the interests between a victim and defendant’s respective constitutional rights, but that this was not the case because the record was devoid of any facts supporting defendant’s assertion that his constitutional rights would be violated if the victims were present at the hearing. In so finding, the appellate court vacated the trial court’s order granting the defendant’s motion for an ex parte hearing relating to mitigation.
