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Carbon Copy Criminal Defense

Arizona has pretty good discovery rules. The state has to disclose quite a bit fairly early in the process compared to many jurisdictions. The defense also has a duty to disclose, which mostly consists of providing the state with a list of witnesses, exhibits, and defenses that may be offered at trial. Courts generally don’t enforce the rules as they should, but they’re still quite helpful. At the very least, the defense gets enough to prevent nasty surprises in most cases.

The notices themselves contain a lot of boilerplate language. Writing a disclosure notice from the ground up would waste time. Plus, things like diagrams of the scene and maps of the area aren’t normally the first thing a lawyer thinks about when mounting a defense, and it’s good to put the state on notice of those potential discovery items early to avoid an irritating objections later on in the process.

There are a few different approaches to drafting what’s usually entitled “Defendant’s Rule 15.2 Disclosure Notice.” One is to print a completely boilerplate pleading, check the applicable defenses, and file it. The better way is to look over the standard pleading and, with a good understanding of the case, supplement it with language that will encompass every conceivable thing that needs to be disclosed at that point in that particular case. It doesn’t take very long, but it’s really worth it for that one-in-a-million time when the prosecutor skims the notice and later objects to something it contains on grounds involving lack of disclosure. It makes the prosecutor look spectacularly stupid.

Prosecutors almost never read their own disclosure notices either. It’s something their paralegals prepare and that they only think about when it becomes an issue. Some defense attorneys do the same thing. The parties can get away with generalized, sloppy notices, and they often do. Carefully composing a notice can set a defense lawyer apart. Sometimes, out-lazying the lazy prosecutor can set a defense lawyer apart too.

There’s one defense lawyer who had some company print up triplicate carbon copy disclosure notices. It’s amazing. He rolls into court, late, of course, and picks up the calendar. He pulls out his stack of notices and fills in the names and case numbers of his clients, checks the defenses on the spot, and calls the cases. The judges ask him if he’s filed his “15.2,” and he says he has it with him. He dramatically pulls off the top sheet and asks to approach and deliver it to the court before handing the second copy to the state. He keeps the third for himself.

The if-you-can’t-beat-em-then-join-em mentality is remarkable. It’s also funny. If you aren’t a client. And if you don’t really care about the quality of representation people are getting. The McJustice feel of the system in general is bad enough, but it’s that much worse when a one-man firm uses a choose-your-own-adventure approach to criminal defense. How many clients does someone need before the printing expense of carbon copies becomes economically sensible? Probably a lot.

His approach serves as a litmus test for other defense lawyers. The ones who think “hmm, that’s a good idea” should probably reduce their caseload. The ones who think “man do I need to reduce my caseload; I can’t believe I think that would be helpful” will hopefully follow through with it. Follow through with reducing their caseload, I mean. The ones who think “holy shit, this place is going to hell in a handbag” are the ones to whom I refer cases.

In all fairness, most first-pretrial minute entries say “Defendant has not complied with Rule 15.2. Defendant’s Notice shall be filed by such-and-such-a-date.” I guess the carbon copy guy may be ahead of the curve. Sadly, most pretrial minute entries also reflect that no substantive motions are planned and no interviews have been conducted.

A justice system where defenses are kept warm under heat lamps isn’t so just, but I suppose it’s better than starving. What a depressing thought.

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2 Responses to "Carbon Copy Criminal Defense"

  1. Josh Camson says:

    My favorite is when attorneys use boilerplate requests for discovery. Nothing says prepared like a request for the address of a victim when the victim is deceased.

  2. Andrew (the other one) says:

    I love the smell of McJustice in the morning.

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