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It's All Illegal

Years ago, I thought I knew what was illegal and what was not. Now, I know that what I once thought I knew may in fact be unknowable.

Take hindering prosecution, for instance. In Arizona, a person commits the offense of hindering prosecution if, with the intent to hinder the prosecution of another person for any felony, the person renders assistance to the other person. A person can render assistance by knowingly preventing by means of deception anyone from performing an act that might aid in the prosecution of the other person.

I have a client who was in custody last summer, sitting on the chain in court waiting for a hearing. An officer came to court to get a handwriting exemplar from another inmate on the chain, and my client advised the other inmate not to provide it. My client told the other inmate he shouldn’t do it because there was no order. When the officer showed the other inmate the order, my client told him not to sign anything because it was incomplete. Although the order was completed and signed at some point that morning, my client might have been right at the time.

In the end, the other inmate listened to my client, and my client was later charged with hindering prosecution. It was charged as a class 2 felony because the other inmate was accused of murder. Although I question whether the state had anything to prove my client knew the other guy’s charges, the crime as charged carried a mandatory sentencing range of 10 to 35 years. The presumptive sentence was 15.75 years.

My client couldn’t fathom how what he did was illegal. The officer didn’t have an order, so why should that guy have to give a handwriting sample? The order he got later wasn’t complete, so why should he have to follow it? My client thought he was protecting another inmate’s rights. Maybe not the smartest thing to do, but is that really a serious felony offense?

The state would try to show intent to hinder by explaining my client wasn’t a lawyer. Where did he come off advising someone else about what he was legally obligated to do? He must have intended to hinder the officer, right? Without a doubt, my client knowingly rendered assistance to the other inmate, and the exemplar certainly might have aided the prosecution. The state probably wouldn’t have bothered to get it otherwise.

That leaves only whether my client used means of deception to prevent the other inmate from giving the exemplar. In the end, the case would hinge on whether the jury thought my client’s statements, which an officer would claim were untrue because the order was eventually signed, constituted means of deception. Those are words that aren’t explained anywhere in the Arizona Revised Statutes or in any case law. Considering the penalty, my client would have to take one heck of a gamble to find out what a jury thinks they mean.

“This is America!” “I have a right to free speech!” “That order wasn’t signed!” “Since when is giving good advice illegal?” My client couldn’t understand how what he did could possibly be a crime. It was hard to explain to him that his defense could just as easily be a factual basis for a plea of guilty. At trial, a jury of non-lawyers interpreting undefined terms would decide. Is that a chance worth taking?

I could go on and on about other clients with cases involving largely undisputed facts. I can’t even count how many cases I’ve handled where the defense was that the state’s version of events, if true, doesn’t constitute an offense. In each case, I wished that the rules allowed me to file a motion for summary judgment. Unfortunately, the criminal justice system here doesn’t work like that.

I once represented a devoted school district volunteer charged with theft and fraudulent schemes for reallocating grant money for legitimate purposes before the formal approval process was complete. Did reallocating funds exactly as requested and later approved but prior to notice of approval constitute converting control of the funds from an authorized use to an unauthorized use? That was a 3-to-12.5-year question for my client. The risk was too high, so my client never got to ask a jury.

I’ve represented a client charged with felony flight for driving safely and under the speed limit for less than a quarter-mile but taking two slow turns before stopping for the officer behind him. Could that incident, which lasted under 3 minutes from sirens to arrest, be considered willfully fleeing? No one disputed the facts, and we did take that one to a jury; they decided it was enough to constitute flight.

Like my hindering prosecution client, I often find myself wondering how some things can be illegal. This is America, right? Since when is giving advice a crime? Efficiently spending money for a school? Pulling off the main roads to safely stop for an officer? Isn’t this America? Isn’t this a free country? I’m reminded of the words of the great Randy Marsh:

America it is, but free we are not. Whatever you’ve done, no matter what it happens to be, is probably illegal. Just hope the government doesn’t get you in its sights.

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