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A Brief for Those Who Lack Creativity

Yesterday, Ohio criminal defense lawyer Jeff Gamso put up a blog post that included this paragraph: In Ohio criminal defense circles, I’m known as one of the Anti-Anders-brief Nazis. Under considerable pressure from other members of the bar, I was convinced not to try publicly humiliating the lawyers who file them. Sort of like maintaining good relations with repressive regimes because we can reach them better if we’re nice, I have standing offers out to help lawyers find issues when they’re stuck. Occasionally I’m taken up on the offers. I’ve had some success at convincing people they shouldn’t be filing them. And I speak about this sort of thing a fair amount at CLEs. It’s not enough, but it’s what I can do. If you … Read entire article »

Filed under: Post-Conviction

Losing at Trial

Last week, a jury found my client guilty of three counts of dangerous crimes against children. I sat next to him in court as the clerk read the verdict, and he broke down before the clerk made it through the second count. He knew he would spend the rest of his life in prison. This isn’t the first trial I’ve lost. It pains me to say it, but it’s also unlikely to be the last. No matter how hard I try, I’ll probably again have to experience the feeling of knowing someone trusted me with their life and made a gamble that didn’t pay off. It’s a twisting, sinking, hopeless malaise that consumes you. You’re in a nightmare. You know you can wake … Read entire article »

Filed under: Clients, Practice in General, Trial

The Price of Being Right

Arizona’s Revised Statutes are filled with mandatory sentencing provisions. For instance, A.R.S. 13-703 says that a repetitive offender in “category three,” someone who has been convicted of a felony and has two or more historical prior felony convictions, “shall be sentenced” within certain sentencing ranges. The range for a category three offender convicted of a class 2 felony is 10.5 years to 35 years. A.R.S. 13-704 contains another mandatory sentencing scheme. A “dangerous offense” is one “involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.” If someone is convicted of a “dangerous” class 2 felony, the statute says that he or she “shall be sentenced” to a term … Read entire article »

Filed under: Arizona Statutes

Preparing for Trial

I spent a good bit of my weekend preparing for trial. It’s a draining experience, though not nearly as draining as trial itself. This particular trial has very high stakes. My client’s earliest release date will be more than seventy years from now if he’s convicted. Being able to speak in public, knowing the facts of the case, and understanding the rules of evidence are rarely enough to effectively try a case. There are countless variables in almost any trial, and anything can happen. Every trial I’ve done has taught me that one of the most important skills a trial lawyer can have is the ability to predict problems that might arise and prepare accordingly. My background is in music. In music, you do your … Read entire article »

Filed under: Practice in General, Trial

Back to Blogging

In case you haven’t noticed, I have not put up a post in weeks. First there were trials. One made it to verdict, one ended in a mistrial, and one got continued over my objection. After the trials came motions. I think I wrote about a dozen big ones in a week or two. Eighty-hour weeks felt like the norm, and the idea of writing anything, even a blog post, seemed an awful lot like work. As soon as the smoke of trials and legal writing cleared, I left on a motorcycle trip. Adrian and I had been planning to ride to Cabo San Lucas and back for quite some time. We’d carefully set up coverage months in advance, notified all our clients, … Read entire article »

Filed under: Uncategorized

Should Be an Interesting Race

Tom Horne officially announced his candidacy for attorney general last week. No surprise there. Andrew Thomas will probably make his official decision soon. No surprise there either. What’s surprising is what I discovered reading about the race in this article. It looks like there’s a third lawyer seeking the Republican nomination for attorney general. That lawyer is none other than Tajudeen Oladiran, whom you may remember from this motion. I usually don’t pay much attention to elections, but with Taj and Andrew Thomas both competing for the GOP nomination, I think I may start following the race. … Read entire article »

Filed under: Uncategorized

A Lie or Just Misleading?

In previous posts, I complained about having to trust prosecutors to set up victim interviews. In case you don’t feel like clicking on the links, I’ll summarize: in Arizona, defense attorneys have to ask the prosecutor to ask the victim if he or she wants to talk to them. As I discussed in those posts, there are a lot of problems with that. I recently encountered a situation that highlighted one big problem. The victim in one of my domestic violence cases has recanted. She is very eager to tell everyone, myself included, that she lied about what happened and wants the prosecutor to dismiss the charges. I know for a fact she told the prosecutor she wanted absolutely nothing to do with the case … Read entire article »

Filed under: lawyers, Prosecutors, Victim's Rights

A CPS Nightmare

The prosecutor scratched the charges because my client was not guilty of the crime. This wasn’t one of those maybe-she-did-it-but-we-can’t-prove-it cases. The sum of information available about what happened should have made it obvious to anyone with half a brain that my client did nothing wrong. She did not assault her daughter. My client’s innocence notwithstanding, some of the folks over at Arizona Child Protective Services, either lacking half a brain or bored with nothing to do, decided to meddle. “We just want to get your client’s side of things,” they said. I found out about the meeting exactly one business day before it was set to happen. I don’t represent people in dependencies. I attended the meeting with CPS because I never trust the … Read entire article »

Filed under: Government Rants

Case against DeCosta Dismissed

The case against David DeCosta has been dismissed. Here is the story, and here is the minute entry. I haven’t seen the state’s motion to dismiss, but Arizona Criminal Attorney Russ Richelsoph tells me the state moved to dismiss without prejudice because there was “no reasonable likelihood of conviction.” I summarized the facts of the case here, but Mark Bennett explained it best: DeCosta was set up by the Maricopa County Sheriff’s Office and the Phoenix Police Department, and he was almost certainly factually innocent. When I found out the criminal case against DeCosta was dismissed, my first thought was “it’s about damn time.” My second thought was “what’s he going to do now?” In my daily practice, I see how destructive criminal charges can be. … Read entire article »

Filed under: Uncategorized

"Looks Like I'm Out of Judges"

I haven’t been blogging because of my schedule. Too much work, not enough time. The end is in sight though. Or rather, the end was in sight. I was supposed to start a six or seven day felony trial this morning, and my schedule looked pretty bearable after that. The case is in Maricopa County Superior Court, and it’s assigned to the master calendar. I’ve complained about RCC before. The master calendar isn’t much better. Whereas RCC seems designed to make sure most lawyers appear lost at all times prior to an indictment, the master calendar seems designed to rush every case to trial after an indictment without letting the parties see the same judge twice. I haven’t figure out why anyone … Read entire article »

Filed under: Courts, Trial

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