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David DeCosta Revisited

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 … while working in an undercover capacity. With [her] help, an undercover officer hid drugs in the binder portion at the top of a legal pad. The plan was for [her] 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 [her]. They also discussed paying DeCosta, and [she] 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. [she] 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 [she] 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 [her] and said [she] told him they would “hook up.” He also admitted to having sex with an escort he met through [her], 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 [her]. In them, [she] 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, [she] 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.

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17 Responses to "David DeCosta Revisited"

  1. […] summarized the facts of the case here, but Mark Bennett explained it best: DeCosta was set up by the Maricopa County Sheriff’s Office […]

  2. […] – and sharing it with an equally badged friend, who promptly spirits it out of court.  Lawyers from all over the blawgosphere have been making intolerant statements about Mr. Stoddard’s reading preferences, very much not in the spirit of today.  One particularly cogent comment came from Mark Bennett, who noted that “…the defense lawyer’s first reaction is to want to know if she’s being accused of wrongdoing.”  Occurred to me, too, that she might have been worried that narcotics had been planted there.  Wouldn’t be the first time. […]

  3. […] Hope It’s Just The WaterDavid DeCosta RevisitedMissing the PointInequalityAnd The Machine Keeps on Running…Another One Bites The Dust […]

  4. Mark Bennett says:


    And the police lied in their report for the same reason?

    “With [her] help, an undercover officer hid drugs in the binder portion at the top of a legal pad. The plan was for [her] to give the pad and other supplies to DeCosta at Alejandro’s next court appearance. DeCosta would then give the pad to Alejandro.”

    That’s a setup. No “allegedly” about it.

  5. E. Honda says:

    Allegedly set up by the cops.

    For example, maybe he lied to the police to keep Alejandro from killing Loved One X (see Matt’s implausible hypos from the original post).

  6. Jameson Johnson says:


    I appreciate you using your forum to enlighten people about Da Costa being set up by the cops. This frightening incident should give anyone who works in criminal justice pause for thought when a Defendant’s family wants to talk. Invoke attorney client privilege, and only talk to them if YOU need info for the defense case, or mitigation.

  7. Jerri Lynn Ward says:

    Dear Matt,

    Please do not believe that simply because an attorney is old, that they have any special wisdom or insight. I have read about the problems in your county for several years. Remember that all those elderly attorneys who have attacked you have monetarily benefited greatly from the disgusting actions of your sheriff and DA for years. Only now do they awaken and attack, because they apparently believe that their fellow attorney is worth more than all the little people previously caught in the web of the government.

  8. […] David DeCosta was set up, to begin with: set up by the Maricopa County Sheriff’s Office and the Phoenix Police Department, and almost certainly factually innocent. […]

  9. E. Honda says:

    I agree with Mark Bennett (read his blawg). The idea that a lawyer assumes a responsibility to the public just by blogging is pretty self-righteous.

    The body of work on this blog shows Matt to be a capable, observant advocate for his clients, who also accepts personal attribution for his insights. It’s disheartening to see “respected” attorneys arrogantly call his skill into question while ignoring the clear portrait Matt has painted of his own mind.

  10. shg says:

    I think by “no one,” he means the handful of local lawyers who are so deeply stuck in their position that they can’t admit that they were misguided in their attack on this “kid” lawyer.

  11. Gavin Peters says:

    @Steve Lansing, re: “By the way, no one is buying your excuse of “hypothetical”.”

    If by “no one” you mean “some people,” then sure.

  12. Mark Bennett says:

    As often happens, Jdog has nailed it.

    All of these “friends” of David DeCosta were given an excellent venue (I note that this post is on the first page of Google when one searches for his name) for correcting the record and sharing the truth of the matter—that David DeCosta was set up, and is almost certainly factually innocent—and instead they chose personal attacks against Matt and rants against the art of blogging.


  13. Jdog says:

    Interesting. I don’t see it as inconsistent to muse on a hyptothetical inspired by a real life situation — then again, I like watching L&O at times, so what do I know?

    What’s fascinating to me is that there is, at least, a credible narrative in which De Costa is not only not guilty by reason of not having done anything wrong but has been set up, and that, as far as I can tell, quite literally none of the folks upbraiding you for not having gone with that narrative pointed at the documentation that, at the very least suggests that it’s not far-fetched.

    If one believes the police reports, though, there’s a shocking point in it that you barely touched on: this guy’s apparently an at least moderately seasoned criminal defense lawyer, and the moment that he’s hauled into an interrogation room — if you believe the police reports at all — he doesn’t just shut up and lawyer up, even though (again, assuming that the reports aren’t utterly fictional) he would be particularly wise to do.

    If somebody like that won’t follow the simple rules, how much hope is there for the rest of us?

  14. Andrew Becke says:

    In the spirit of ad hominem attacks, I just want to note that Matt Brown used to play the french horn and is he is therefore unfit to represent anyone or offer an opinion on anything.

  15. Chris K. says:

    I understood the HYPOTHETICAL you were posting from the get go. Hence the first comment on the first post. Don’t let these “learned” morons distract you from the fact that your loyal readers understood and got the point from the beginning.

  16. Matt Brown says:

    Are you really still making that same stale argument?

  17. Steve Lansing says:

    You still do not get it. People were only attacking you personally because you wrote a blog article about a subject about which you knew absolutely nothing. At the time you wrote the article, the police report (DR) was available. Half of the community has it. Your writing was irresponsible, especially for a party who claims he is a defense counsel.

    No one would have cared if you would have written a blog and you were informed about what you wrote. But you wrote a blog and based your information on an old news story; a true journalist would have sought if better information was available. You chose to be lazy and not investigate. You wrote an article just to titillate the public — discussing oral sex.

    You need to determine if you want to be a defense counsel or a journalist. If a journalist, what kind of journalist: tabloid or serious.

    To paraphrase the editors of the Chicago papers: If your mother tells you she loves you, check it out.

    By the way, no one is buying your excuse of “hypothetical”. Read the title of your article. Also read the article. Your initial article, the later explanation, and your serving sur-explanation are laughable. People would respect you more if you defend your position. What do you do in court? Keep changing your position based on the way the wind blows?

    I am only sorry that I have spent over five minutes on this.

    Steve — Cleveland

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