Home » News » Condemned inmate loses case alleging prior restraint against his attorneys

By David L. Hudson Jr., published on March 11, 2022

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A requested order requiring a death-row inmate’s lawyers to channel requests to interview victims through the prosecution to see if the victims consent to such interviews is not a prior restraint and does not violate the First Amendment, a federal district court in Arizona has ruled.


Finding no First Amendment problem, the federal district court granted the state’s requested order.


The controversy arose in the case of Fabio Evelio Gomez, who was convicted and sentenced to death for the murder, sexual assault, and kidnapping of a neighbor. A jury first convicted Gomez of the offenses in 2001.


Before he was sentenced, the U.S. Supreme Court issued a ruling in another case out of Arizona, Ring v. Arizona (2002), which required that all aggravating factors in death-penalty cases be decided by a jury, not a judge. Thus, a second jury determined that the murder Gomez committed was especially cruel and depraved — an aggravating factor in capital cases — and he was sentenced to death.


The Arizona Supreme Court affirmed the murder conviction but vacated the kidnapping sentence and the death sentence. On remand, a third jury found the murder was especially cruel and depraved and said Gomez should be sentenced to die.


Gomez then unsuccessfully petitioned for post-conviction relief in state court. Post-conviction relief is a process whereby a state-court defendant argues that his conviction was invalid, because a violation of his constitutional rights occurred during the trial or appeal.


Once an inmate loses at the post-conviction stage, his only remaining avenue is to file a writ of habeas corpus in federal court. A federal habeas claim contends that the inmate’s constitutional rights were violated during the trial or appeal in state court.


A federal district court appointed Gomez counsel and ordered his counsel to file his habeas petition by July 8, 2022.


The state of Arizona then filed a motion to limit Gomez’s counsel from contacting former jurors in Gomez’s state-court litigation without first obtaining permission from the court and also from contacting any victim in this case unless counsel channeled such requests through the state’s attorneys.


If the victim consented, then Gomez’s counsel could interview the person. If the victim did not consent, then Gomez’s counsel would have to file a motion with the court requesting the court’s permission to interview the victim.


The state’s attorneys asserted that such a motion was supported by the state’s Victims’ Rights Act. Under that law, victims include family members or lawful representatives of the person killed by the defendant.


Gomez’s counsel argued that any order so limiting contact with any victims amounted to a prior restraint on speech and violated the First Amendment. In First Amendment law, a prior restraint is a government rule, order, or law that imposes significant pre-publication hurdles on speech. For example, a court order prohibiting the news media from reporting on a case — a gag order on the press – is an unconstitutional prior restraint on speech.


Gomez’s defense team wrote that “foreclosing meaningful investigation and effectively barring victim contact” amounted to a prior restraint on speech.


However, U.S. District Judge Michael T. Liburdi rejected this prior-restraint argument in his Feb. 28, 2022, decision in Gomez v. Shinn. The judge reasoned that attorneys are subject to different restrictions and regulations than other members of the public, and sometimes such restrictions can limit their ability to obtain information.


Liburdi also noted that “the requested order does not bar Gomez’s defense team from asking to interview victims; it only requires the team to channel such requests through [the State’s] counsel.” He added that the requested order also “permits victim-interviews if the victim consents, and if the victim does not consent, the order allows Gomez’s counsel, through leave of Court, to request the Court’s permission to interview the victim.”


Liburdi concluded: “The requested order, in sum, does not place a prior restraint on the First Amendment rights of Gomez’s counsel.”


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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).




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