After this post generated a deluge of negative comments attacking me and protesting the case against David DeCosta, I responded with this post. That didn’t help matters, and the angry comments continued. Scott Greenfield at Simple Justice chimed in here, and Jeff Gamso at Gamso – For the Defense discussed the situation in this post.
As the battle raged on with comments and emails of widely varying civility and rationality, I began reviewing the police reports in DeCosta’s case. Initially, I dreaded the idea of going over them. I was expecting to find overwhelming evidence of DeCosta’s guilt. After all, almost everyone who was asserting his innocence did so by criticizing me. People who try to make their case by personally attacking their opponent usually don’t have much of a case. As far as the case for DeCosta’s innocence goes, it turned out to be the exception to the rule. Here’s my summary of the reports:
Officers got to know Jesse Alejandro’s girlfriend, Emilee Keen, while working in an undercover capacity. With Keen’s help, an undercover officer hid drugs in the binder portion at the top of a legal pad. The plan was for Keen to give the pad and other supplies to DeCosta at Alejandro’s next court appearance. DeCosta would then give the pad to Alejandro. It looks like the whole incident started at the direction of law enforcement.
Officers thought DeCosta might have been aware of the plan because they heard Alejandro and his girlfriend mention his name a few times during jail calls. Apparently, they said DeCosta previously passed a list of names to Keen. They also discussed paying DeCosta, and Keen complained about getting inappropriate text messages from him. I couldn’t find any direct evidence showing DeCosta had any idea about their plan.
In court, things went more or less as planned. Keen gave DeCosta the supplies, and DeCosta handed them to the detention officer. You heard me right; he didn’t even give them to Alejandro. DeCosta handed them over to a deputy with the Maricopa County Sheriff’s Office, who inspected the pad and found what Keen and the undercover officer had hidden inside.
Officers detained DeCosta, who adamantly denied knowing there were drugs hidden in the pad. DeCosta talked about his fee. He admitted to flirting with Keen and said Keen told him they would “hook up.” He also admitted to having sex with an escort he met through Keen, but said it was not in exchange for money or legal services.
Back at the police department, DeCosta showed officers the text messages he exchanged with Keen. In them, Keen first tells DeCosta she has supplies to give to Alejandro. DeCosta was there that morning to file a substitution of counsel and had never previously appeared on Alejandro’s behalf. In the text messages, Keen insisted she’d previously gotten supplies to Alejandro every time he went to court.
Believe it or not, that’s it. Before I discuss the implications, though, I want to offer the following disclaimer: I have no clue if any of that is true. The news may not be reliable, but neither are police reports. A lot of the police reports I read fall somewhere between the Weekly World News and The Onion as far as reliability goes. If you are upset that I’m offering commentary based on facts that may or may not be true, please don’t bother telling me.
The implications of the case against DeCosta are indeed disturbing. The message I get from the police reports is clear: violate our policies and we’ll make an example out of you. Police seemed to interrogate DeCosta ad nauseum about the fact he knew legal supplies were supposed to come from him and not an inmate’s family or friends. The general impression I get is that the sheriff’s department needed a scapegoat from the defense bar to make its point.
Why did they choose DeCosta? Did they find out about his indiscretions and figure he was the ideal guy to set up? Was it all about him from the beginning? Have they tried this before with other attorneys? I have no clue, but I wouldn’t be surprised. There’s a lot of tension between the sheriff and defense attorneys here. Have a look at this recent fiasco, for instance. Attorneys have fought the sheriff on jail hours, jail conditions, and a number of other issues. Maybe Sheriff Joe wanted to let us know he can fight back.
Reading the reports, I wonder how many things I’ve done that could have landed me in DeCosta’s position. Serving as advisory counsel, I given at least one pro se client a whole bundle of legal supplies. They may not have come from the client’s friends or family, but I certainly couldn’t provide a complete chain of custody for them. I don’t desperately clutch my briefcase at all times. When I address the court, it often sits in the back of the well surrounded by other attorneys, a few feet from the gallery. It wouldn’t be too hard for someone to plant something or switch a legal pad.
I wonder how many other policy violations the sheriff could turn into a criminal offense when the wrong defense attorney commits them. I doubt I know even a tiny fraction of the sheriff’s policies, and they seem to change constantly. Sometimes jail security is incredibly tight. Other times, I’ll be in the visitation room waiting to see a client while the defense lawyer next to me chats on his cell phone. It’s tough to know what you can and can’t do. If they have some dirt on someone, why not set them up to violate a policy then bust them big time? It’s a hell of a way to make a point.
It’s easy to blame DeCosta for this mess because he spoke to the police, and I admit that I felt like I was watching a horror movie as I went through the reports. “No! Don’t go in there! Don’t talk to them!” It’s easy to look back and see how much trouble he was in and how much worse he made it, but he probably had no clue. His willingness to talk to the police could well be because he is in fact innocent. He probably did the same thing many of my clients do; in seeking to make the interrogating officer believe him, he confessed to every bad but non-criminal thing he’d done. In DeCosta’s case, those things just happened to give the police enough to arrest him. I’m fairly confident he’d have never been charged if he just said “I had no idea there were drugs in there, and I refuse to answer any more questions.”
Finally, I wonder how the assigned prosecutor feels about this case. Does he doubt it? Does he wonder if DeCosta really knew what he was doing? If the facts I’ve given you are the only ones he has, I hope he’s torn. He should be.
People who know him all seem to describe DeCosta as a good person and a fine lawyer. Aside from this whole mess, I’ve never heard a bad word about him. I sincerely hope he is vindicated in the end. I also hope that getting the facts out here puts the circus surrounding him into perspective.
I’m not going to apologize for my previous post, though I am updating it to reflect my current belief that DeCosta is not guilty of the charges against him. I have no desire to spread misinformation. I also have no intention of walking on pins and needles to avoid hurting people’s feelings when I discuss fascinating new stories. As I intend to follow some sound advice and be more circumspect when discussing current events in the future, I hope those who attacked me in the comments here and elsewhere have learned something from all of this as well.