Defining "victim" in the Arizona Victim's Bill of Rights

Article 2.1 of the Arizona Constitution, better known as the Victim's Bill of Rights (VBR), has a strange quirk. Take a look at its definition of "victim":

"Victim" means a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person's spouse, parent, child or other lawful representative, except if the person is in custody for an offense or is the accused.

(emphasis added)

A plain reading suggests that people "in custody for an offense" are not victims, and thus have no rights under the VBR. Which would mean they have no right to criminal restitution, no right to be present at hearings, and, of course, no right to refuse interview requests from criminal defendants. It was generally accepted that Stapleford v. Houghton, a case involving a prisoner-on-prisoner assault, seemed to support this general interpretation.

Until now.

State v. Ergonis, a part of the high-profile Kumari Fulbright case from a few years back, just came back from the Court of Appeals. The Court sharply circumscribes the reach of the VBR's exclusionary clause with respect to people in custody, to include only cases in which the victim is also the accused and when the crime occurred while the victim is in custody.

The Court seems to ridicule Ergonis's position -- that the VBR excludes anyone in custody, regardless of whether the offense happened while the victim was in custody or not -- but frankly, its own reasoning doesn't appear to be that strong either, except that to rule otherwise would bring down the perceived status quo.

Will we now see a resurgence in interest in the VBR on the part of in-custody defendants? Perhaps victims currently held in other states, or in federal custody, will demand to be transferred to Arizona court? How will Arizona courts handle these requests?

Failure to Register? Go to Prison FOR LIFE

Arizona has its share of stupid laws, but at times like this I thank God I don't live in the South.

Legal analysis of the day, provided by Orin Kerr:

"If you're a registered sex offender, failing twice to properly register your home address is really dumb."

(thanks Volokh)

Watch your Ass, Arizona

You may remember this gem of a Fourth Amendment case from last year, in which Division Two of the Court of Appeals rejected a warrantless search of an arrestee's anal cavity.

The State didn't take that rebuke too kindly. The case, State v. Patricia Barnes, has been accepted for review by Arizona's Supremes.

(Here's the original Division Two opinion.)

Dead or Alive

Wisconsin Court of Appeals: Sex with a dead deer just as illegal as sex with a living one.

Myspace "Friend Request" Violates Protection Order

So finds a New York state court judge.

I'm starting to see cyberstalking issues more frequently in practice. Definitely a hot issue.

Justice O'Connor: Universal Merit Selection; Interchangeable Prosecutors & Defense Attorneys

Sandra Day O'Connor has been pretty outspoken since she stepped down from the bench, God bless her.

In a recent conference she extolled merit selection for judges -- not exactly a controversial topic to anyone but far-right Foghorn Leghorn types, but a Good Thing nonetheless. But she goes on to suggest that the artificial dividing line between prosecutor and defense attorney be done away with. She proposes that we follow the example of the English (and other European countries), where attorneys fill both roles. One of the chief causes of prosecutorial abuse -- the U.S. attorney scandals, the Duke rape cases, the Genarlow Wilson case -- is politics. Removing politics from the election of judges has given us better judges. If we remove politics from the prosecutor's office, might it not give us better criminal trials (i.e. fewer reversals, fewer habeas petitions, less taxpayer money)?

My note touched upon this issue briefly in the context of the French system. European countries tend not to view the criminal justice process in such stark, adversarial terms. Whether this has truly led to a reduction in prosecutorial abuse in those countries is something I'm not prepared to say. (And there are plenty of other things that go on in French courtrooms that would make us uncomfortable, to say the least.) But Justice O'Connor raises a fascinating issue that should be openly discussed.