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Timothy Vansickel
19440 E. Stagecoach Trl.
Cordes Lakes, AZ 86333
Persuant to Sup.Ct.Rules, Rule 28 (i) and it's internal reference to Sup.Ct.Rules, Rule 26, requesting suspension of Sup. Ct. Rules, Rule 28 (e) (2), for good cause, to wit, the petitioner filed a quite long reply to the comments on the last permissible day, in which they claimed the many attorneys and the law student that commented failed to grasp the intent of the proposed rule, and that the concern that this proposed rule "violates the confrontation clause in some manner" is "not correct". As this was outside the scope of the original petition and is only now possible to respond to, and was clearly erroneous, I would my reply considered.
The United States Supreme Court does not take up cases involving Confrontation Clause issues frequently. The most recent occasion they did was an Arizona Case, Smith v. Arizona (No. 22–899. Argued January 10, 2024—Decided June 21, 2024) in which they opined:
"For a time, this Court held that the Clause’s “preference for face-to-face” confrontation could give way if a court found that an out-of-court statement bore “adequate indicia of reliability.” Ohio v. Roberts, 448 U. S. 56, 65–66 (1980). But two decades ago, the Court changed course, to better reflect original understandings. In Crawford v. Washington, the Court deemed it “fundamentally at odds with the right of confrontation” to admit statements based on judicial determinations of reliability. 541 U. S., at 61. The Clause, Crawford explained, “commands not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Ibid. And so the Clause bars the admission at trial of an absent witness’s statements—however trustworthy a judge might think them—unless the witness is unavailable and the defendant had a prior chance to subject her to cross-examination."
The petitioners' reply completely disregards this guidance, attempting to make an end run around the Confrontation Clause in the precise manner Arizona Courts were directed not to permit in the most recent Confrontation Clause case SCOTUS took up, citing to Arizona cases decided many years prior to Smith and ignoring that the opportunity to cross-examine must be "prior", and studies regarding reliability of child testimony versus forensic interviews outside "the crucible of confrontation". For example, quoting petitioners:
"Specifically, AACJ suggests that the
Confrontation Clause is violated unless the defendant would have the opportunity to cross
examine the child witness at the time of the forensic interview. AACJ at 7. However, this
argument is not correct. So long as the declarant (in this case, the child witness) is subject
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to cross-examination in front of the trier of fact, then the Confrontation Clause is satisfied.
State v. Lopez, 217 Ariz. 433, 438, ¶ 17 (App. 2008); State v. Real, 214 Ariz. 232, 234, ¶ 5
(App. 2007). "
"However, these statements do not contain the same indicia of
reliability that a forensic interview would have, and it would almost certainly lead to the
disclosure of very private counseling records of a victim of sexual abuse—a result that
should be disfavored as it is contrary to public policy. We should adopt policies that
encourage people to seek treatment for mental health issues without the fear that their
deepest innermost thoughts could be exposed to the world."
This is in direct conflict with the guidance SCOTUS had for our State's Courts in Smith. It is not contrary to public policy to require confrontation, confrontation is our State's public policy, as Section 3 (A) of the Constitution of the State of Arizona states "The Constitution of the United States is the supreme law of the land to which all government, state and federal, is subject." and the Confrontation Clause of that Constitution has clearly been incorporated to apply to the States.
Aside from this, it seems odd that this is a petition posted by a Deborah Serrata, purporting to be authored by the elected Maricopa County Attorney and two of her Deputies, as well as by Colleen Clase of Arizona Voice for Crime Victims. I overwhelmingly agree with the vast majority of Ms. Clase's petitions in this forum, and by their existence I am aware she has her own account on this forum. The "Consolidated Reply" of the Petitioners dated June 2nd did not list Ms. Clase as an author, and Ms. Clase did not see fit to reply from her own account. The petition was signed, actually signed in blue ink with the appearance of being handwritten, by Ms. Mitchell, Maricopa County Attorney. Ms. Clase's signature on that same document is signed with the /s/ typed format. The reply is signed only by /s/ format signature of two of Ms. Mitchell's deputies. None of these signatures tells me who Deborah Serrata is. I want to be clear that I am not accusing anyone of any wrongdoing here, simply pointing out that this forum is public and these petitions, comments, and replies will be viewable for years to come. The FAQ for this forum states: "For electronic filing:
You must be a registered user of the Court Rules Forum (see “How do I register?”)... In the “Message” field you must list the following information:
Petitioner’s Name
Committee Name, if applicable
Mailing Address
Phone Number
E-mail Address
If you are an attorney, Bar Number
If the petition does not provide the applicable information, then the Court Rules Forum Moderator will reject the petition."
If you must be a registered user in order to petition in this forum, and if the petition does not provide the included identifying information your petition will be rejected, it should follow that a petition must be submitted by an account belonging to at least one of the petitioners and that the registered user posting a petition to the forum must be one of the petitioners. Many laypeople who do not participate (this will be my first post, but I have been referring to the forum for years now seeking to gain understanding of the rules and the reasons behind them) will see this. For their sake, in this time of intense political division and distrust of the courts, perhaps it would be prudent to also avoid the mere appearance of impropriety, misattribution of petitions, or conflicts of interest.
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