Arizona Sentencing Laws Meet My Least Favorite Word: Policy

September 2nd, 2010

It’s no big secret to regular readers of this blog that Matt does the heavy lifting around here. Frankly, he does 99.999% of the lifting. I was finally, again, inspired to write out of deep frustration. I often feel as an Arizona criminal defense attorney that I operate in a separate world from attorneys in other states because of Arizona’s especially draconian sentencing requirements. Arizona legislators seem to take pride in steppin’ it up a few notches every couple of years to save our citizens the embarrassment of getting lambasted by Texans laughin’ at our sissy laws. 45 days for a first time DUI if the blood is high enough? We got that. 10 year minimum for possession of a single photo deemed child pornography, with mandatory consecutive stacking for additional pictures or videos? No problem. Do we worry that a person is likely to get less time for actually raping a child than possessing one or two photos of the child nude? Hell no. Immigrants? Better have your papers in this State. I don’t necessarily think it’s harder to practice criminal defense in Arizona, just more frustrating.

The case that brought me to near tears in court this year didn’t involve DUI or children. Rather, it was a fraud case where my client wrote several unauthorized checks for small amounts. She found her ex-boyfriend’s checkbook in a box; they separated months earlier after living together for two years. It was a simple case. The State had photos of her at the bank and copies of the checks. She was charged with several counts of forgery and, shockingly, a class 2 felony count of control of a criminal enterprise.

Unfortunately for my client, she pled to two minor drug charges a month before committing the bad check offenses. She hadn’t had time to get started on probation and kick her drug habit. We had evidence that she was being strongly influenced by a couple of shady individuals who received the bulk of the money but managed to avoid prosecution. We didn’t think we could have won at trial on a duress defense. She was a thirty-year-old mom and had no prior felonies a few months before writing those bad checks. So what is a reasonable absolute minimum should she lose at trial?

How about 15 years on the class two and 10 years if she lost on any of the class 4 felony fraud charges? Yep, good ol’ tough mandatory sentencing Arizona style. Because she was on probation, she could receive no less than the presumptive sentence. Her petty drug charges, which I’m guessing in most States would never have been felonies, maxed her out on the repetitive offender sentencing guidelines.

Fortunately, a safety valve exists on ridiculous mandatory minimums: reasonable plea offers. Unfortunately for my client, she resides in Maricopa County. I was appalled to find myself fighting tooth and nail for plea that would get my client less than half a decade. Why? Policy. Before I was assigned the case, my client rejected her initial offer of between 4.5 and 7 years. We had evidence she didn’t understand the plea when it was offered. However, without getting the previous attorney to admit to misinforming the client (yeah, right), we had to fight for a stipulated sentence far above anything remotely resembling justice.

I found myself fighting back tears when speaking to her family. Explaining to mom that her daughter was going to serve four-plus years over some checks totaling less than the value of a Yugo had me fighting frustration that felt near primitive. I felt like a failure. Ego is a fact of life for all trial attorneys, but especially for criminal defense attorneys. We all feel the prick of defeat even when deep down we know that that particular client didn’t get a raw deal. This case felt more like a sword thrust than a prick.

I worked her case hard. I think I’m usually pretty darn good at getting good plea offers. By the numbers, I got her a quarter of her potential minimum sentence if she lost at trial. It didn’t remotely feel good. This time, I felt I got put through the wringer by Arizona law and ridiculous policy guidelines, and nothing I did made it close to just. I told her more than once that she was the poster child for unfair law and policy.

I’m fond of the term “Perfect Storm.” I don’t use it here because it implies a rare convergence of events. Here, it’s just policy. I hope policy changes in Maricopa County. I’m not dumb enough to hope legislators start repealing absurd laws.

Posted in Clients, Government Rants, Practice in General | No Comments »

That’s Him!

August 31st, 2010

I seem to be taking on a lot more cases with major identification issues as of late. As a result, I’ve been preparing quite a few Dessureault motions. In Arizona, a Dessureault motion is what lawyers call a motion challenging an unduly suggestive pretrial identification procedure. Because an unduly suggestive photo or in-person lineup can mean that a witness misidentifies the defendant not merely at the time of the lineup but also at trial, the case law requires that the trial court hold a hearing to determine whether the pretrial identification process was unduly suggestive. At that hearing, the state bears the burden of proving by clear and convincing evidence that the process was not unduly suggestive.

It might seem like the law is relatively pro-defendant in this area, but it isn’t. Courts make sure of that. “Subtle” differences don’t matter, and what courts are willing to call subtle is often anything but. The courts end up construing “subtle differences” as encompassing almost any difference. The people in the lineup basically just have to resemble one another. Courts also tend to ignore the portions of some controlling opinions saying the suspect’s photograph must not stand out. The case law is ridiculous.

There’s no problem if the defendant’s is the blurriest photograph. His can be the first, and it can even be the only one taken from a unique angle. That’s to be expected, but Arizona courts go several steps farther. The defendant can be the only one with a beard. He can be a different height and weight and have a different hair length from everyone else. He can have all of those difference and also be the only one with a mustache. That may seem bad, but it isn’t the worst. Believe it or not, it isn’t unduly suggestive to do a photo lineup where the defendant is disfigured, with two blackened eyes and a broken nose, and everyone else is fine. Apparently, Arizona courts think that looking like Rocky after fifteen rounds with Apollo Creed amounts to “a subtle difference” from your average guy-on-the-street.

If the case is serious enough, I imagine there’s no limit to what differences the courts are willing to call subtle. As in pretty much every area of the criminal law, courts tend to make it so whatever the state wants to admit is ultimately allowed, thus assuring a conviction. Given the absurd lengths to which they’ll go to uphold an identification, I almost wish they’d quit pretending to care about subtle differences and a basic resemblance and announce that any lineup is a constitutional lineup. At least that would be honest.

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Posted in Arizona Cases | No Comments »

That’s Just What They Need

August 27th, 2010

Waiting for a visit at the federal correctional facility in Florence earlier today, I noticed a poster on the wall. Maybe it’s been there for a while, but I’d never noticed it before. It’s a black poster that says “ZERO TOLERANCE” in big, neon green letters. Next to that, I noticed it said something about suicide prevention. I quickly realized it was a poster informing viewers that the facility had a zero tolerance policy when it comes to suicide.

There must be something wrong with me, as I found the poster amusing. It took me a second to put my finger on just why that was. Maybe CCA intended to have zero tolerance when it comes to employees who facilitate suicide among inmates, but if it’s like any other big, oppressive company or government entity, the burden of any zero tolerance policy is going to fall squarely on the shoulders of people the policy is intended to help.

It really is a perfect example of zero tolerance thinking in action. Only when government is involved, directly or indirectly, would anyone think that taking caged, hopeless, mentally ill people and making their lives suck just a little bit more using stupid policies and intolerance is a good way to cut down on the suicide rate.

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Posted in Government Rants, jail | No Comments »

More Victims of the Drug War

August 26th, 2010

Local news was filled with stories about Chandler Police officer Carlos Ledesma after he was killed in the line of duty on July 28, 2010. The stories describe a former Marine and Persian Gulf War veteran, a proud father and husband with two young boys. He was shot while conducting an undercover “reversal operation” in Phoenix.

From what I’ve read about the case, the facts sound all too familiar. An informant tells the police he has buyers who want to buy a large quantity of marijuana. Police set up a meeting where the informant meets with the buyers and establishes the terms of the deal. The buyers check out a sample of weed provided by officers and prove they have the money. Later, at the buy spot, officers arrive with the full load of marijuana. Before the transaction is over, the SWAT teams arrives and arrests everyone involved. The police and the informant go home after a long day of work. The buyers go to jail.

There’s always a lot more to the story. Informants don’t cooperate out of the goodness of their hearts. They’re usually working off their own charges. They get busted selling or transporting drugs themselves, and in exchange for a probation deal or a lesser prison sentence, they help the police find other traffickers, buyers, and brokers.

It isn’t even that simple though. Like I just mentioned, these reversal operations usually start with that felon informant telling officers someone is looking to make a big marijuana purchase. Informants can, and do, take advantage of people who are desperate. The person looking to make a large marijuana purchase may be looking to do it because the informant told him it was an easy way to make some money.

The person the informant targets may not even be the person with the cash. The informant’s target may just be a poor, desperate person who sees brokering a marijuana sale as a way to survive. In this economy, people are desperate, struggling to feed their families. Informants prey on that, turning ordinary citizens into drug buyers and drug brokers. Five or ten percent off the top of a six figure transaction is going to sound awfully appealing to someone who’s starving.

Officer Ledesma’s murder is a tragedy. My heart goes out to his family. I never knew him, but by all accounts it seems like he was a good man. Undoubtedly, he was a brave man. He was willing to risk his life, a risk that was ultimately realized.

Thinking about all my beliefs, even those most strongly held, I can’t say for sure that there’s any government function I’d personally feel was worth the risk of leaving behind a spouse and young children. People like Carlos Ledesma are probably the best and the bravest among us, but his valor was misdirected. The greatest tragedy of all is that he died in a situation that was probably created by a crooked agent of the police and where the police themselves brought the drugs.

My firm has handled these cases. Officers whose names now appear in the news are familiar to me. I’ve read their reports and prepared for interviews with them. My involvement, however, is with the alleged brokers, lookouts, and buyers. They are victims too. Their children also may be forced to go without parents; not forever, but often for years.

When the police become drug dealers, all of the rules break down. Officers put themselves in danger to do these operations and are closely involved in the subsequent criminal cases. Accordingly, the offers are especially harsh. In negotiating, some prosecutors use a twisted logic that really embodies the hypocrisy of the situation.

They say they can’t make a lenient offer, not even for someone who simply helped the broker and brought neither the money nor the drugs, because “there were guns involved.” Obviously there were guns involved. Officers brought them because these deals are dangerous. Do prosecutors really think a first-time broker coaxed into assisting with such a deal by an informant isn’t smart enough to do the same?

They say they can’t show mercy because “it was a lot of marijuana.” Of course there was a lot. The informant set the price and the quantity. The officers showed up with a van full of drugs. If they set up something involving under two pounds, it would be a lower level felony without mandatory prison. The police came with more because they decided to come with more.

I spent some time a few weeks ago talking about these cases with a seasoned defense lawyer who said the Phoenix Police did reversal operations in the 90′s but quit it because they were just too dangerous.

Phoenix woke up, so why is Chandler still doing it? Why do Chandler Police still insist on sneaking into other cities, selling drugs to dangerous criminals and leaving a trail of drug war victims in their wake? Why are they still subjecting themselves to the possibility they might eventually become victims as well?

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Posted in News, Police | 2 Comments »

Ups and Downs

August 12th, 2010

Private practice can be a roller coaster. The turns may widen and the grades may diminish as time passes, but the financial uncertainty never goes away altogether. Your threshold for risk will diminish as your practice grows.

Traditionally, summer months are the hardest for me and Adrian, but this summer has been an exception. We’ve seen unexpected growth during a time when we usually hunker down and prepare for the worst. We’re lucky, but even if every month is a relatively good month compared to when you started out, you still never know what the next month holds. A lot of money can pour out of a business very quickly when times are slow.

Running a small firm isn’t for the faint of heart. Running it the way Adrian and I run our criminal defense practice seems make it even tougher. You won’t see Brown & Little billboards. Clients don’t go on TV telling the world what we did for them. We have no phone book ads, no radio spots, and I can’t remember the last time we put money on the books for our Google AdWords account. If anything, this blog seems to scare away prospective clients.

Marketing for us is almost entirely socializing with other lawyers, remaining active in things we’d be doing whether we were lawyers or not, and most importantly, doing the best we can in every case. There’s a big downside to that kind of marketing.

The things we don’t do create the illusion of stability. The ignorant count Twitter followers like they’re money in the bank and calls from the back page of the phone book like they’re paying clients, not people in need of free advice without any intention of hiring a private lawyer. Oh what I’d give for the bliss of not knowing better!

The other part of the downside is taxes. An ad in the classified section of a paper is a 100% deduction. Web hosting and SEO are the same way. Take a highly respected lawyer in your field out for lunch to pick his or her brain and develop a relationship, and the IRS will hold you to a 50% limit. The IRS wants you on the side of the bus peddling your services, not in a social setting learning from a master (or even teaching a younger lawyer, depending on where you are in your career). It’s a sad state of affairs.

A man of faith I am not, yet each month the phone seems to ring and provide me peace of mind. Some months are good, others not so good. You don’t which which one it’s going to be until it’s too late. Luckily, they’ve never been so bad that Brown & Little couldn’t cope. I feel blessed, but I never feel secure, no matter how much money’s in the bank. It’s a strange sensation knowing that the source of your income in the future is people you’ve probably never met coming from sources you probably don’t expect, and there’s no guarantee anyone will come in the door at all.

Learning to represent people is a process, and you can always get better, no matter how good or old you are. Learning to roll with the ups and downs of ethically and professionally running a small firm is no different. It’s especially tough when false stability and government incentives line the quick and easy route.

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Posted in Marketing, Uncategorized | 1 Comment »

Poor Guy

August 6th, 2010

Sometimes, I have to respect spammers. Perhaps my favorite spam comment to date comes from “vimax,” who writes as follows:

I’m currently being held prisoner by the Russian mafia [penis enlargement] and being forced to post spam comments on blogs and forum! If you don’t approve this they will kill me. [penis enlargement] They’re coming back now. [penis enlargement] Please send help! [penis enlargement]

I think I just saved a life by posting this. You can thank me when they free you, vimax.

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Posted in Marketing | 2 Comments »

A Victim of the Drug War

August 6th, 2010

I recently had a settlement conference for a client I really like. He’s a nice guy who never ceases to make my days a little brighter each time I see him. When I first met him and asked if he had any criminal history, he told me, “I have a terrible criminal history…terrible!” He said it like he was Richard Pryor in the middle of a stand-up routine, but it turned out he was right. Indeed, he was no stranger to the system. Based on his honesty, however, I knew was going to like him.

He had a lot of prior felony convictions. Looking through his past, though, I could see that he never really hurt anyone except himself. He was an addict, and he kept getting busted. He never got a break. He never conquered his demons. His personal drug habit eventually led him to make small-time sales, and by the time I met him, he’d amassed a significant criminal history. He stood accused of making five separate crack sales to an undercover officer. They were all videotaped and partially witnessed by other officers.

Because he was on parole at the time and due to his priors, he faced a ludicrous amount of time. By my calculations, confirmed by the settlement judge and prosecutor, best case scenario losing at trial was virtually guaranteed to be no less than 31.5 years flat. By “flat,” I mean he’d have to serve every single day. No early release. He’s approaching forty and has a son who is a toddler.

I always tell clients there are two kinds of settlement conferences, the kind where the judge is going to scare them into pleading guilty and the kind where the judge leans on the prosecutor to make a better offer. This one was a little of both. The judge we chose always gives this incredible speech that can make damn near anyone plead guilty. That’s probably why the prosecutor wanted to use him. I wanted him because I knew a settlement in front of him was my client’s best chance of getting the prosecutor to budge on the offer. The judge’s intensity cuts both ways. Turned out the prosecutor and I were both right. She dropped a huge amount of time off the plea, and my client ended up pleading guilty.

It would have been a tough case to defend. That’s putting it lightly. Entrapment wouldn’t work because we’d have to show the client wasn’t predisposed to commit the offense; he’d pled guilty to the same thing twice before. Brainstorming, I explained that to the client and he looked at me, exclaiming “but people change!” He smiled to let me know he was making light of the situation. Like I said, I really like the guy. Unfortunately, the videos were crystal clear. The authorities were thorough in putting together their case.

Mitigation wasn’t easy either. Explaining to a judge how affable your client is won’t exactly get him a super-mitigated sentence, even if it’s true. Talking with him about mitigation, he made one of the funniest little speeches I’ve ever heard:

It’s crack, man! It ain’t meth. Everyone loves meth these days. You know how embarrassing it is to be sellin’ crack? You can’t give away that shit no more! Sure, it’s a bad, bad drug, but it ain’t like no one’s gettin’ no blowjobs for crack. It ain’t 1984. It’s only undercover officers and busted old crack ho’s buyin’ it. It’s a retro drug.

I doubt that would’ve been effective mitigation at sentencing. He has a genuineness about him that makes his humor both heartfelt and tragic, but I think that would be lost on all but the rarest of judicial officers.

As a result of the plea he entered at the settlement conference, my client is now serving over a decade in prison. Meanwhile, I toss and turn trying to sleep at night. I am depressed about the outcome. Even at happy hour yesterday with a bunch of other criminal defense lawyers, I couldn’t get over the case and enjoy myself. Other attorneys told me it was a great offer given his exposure and the facts of the case. It’s supposedly far less time than was offered to other defendants swept up in the same series of DEA undercover operations. Still, I’m upset.

A decade in a cage for drugs. Think about it. My client was a high school football star. He went to college. His son will be in high school when he gets out. His poor child will have spent his formative years without a dad.

The judge’s speech at settlement includes a part about how no defendant ever sees himself being at the defense table when he’s a kid. I got choked up thinking about my client’s life. I remembered mitigation I read in his oldest cases. Back then, his lawyers wrote how he had a bright future ahead of him, how someday he would be a good father, a coach, and maybe a teacher. It is unclear whether his future can ever hold those things. I hope more than anything that it does.

The judge’s speech also focuses heavily on the risk of trial. When he asked my client if he’d ever been to trial, my client shook his head. Suddenly, I felt terrible. Six felonies and not a single trial? My client had spent most of his adult life behind bars, and he’s not once gone down swinging? I wanted to stand up and pound the table. I wanted to reject all offers and continue fighting the state for him, all the way to the bitter end. Now, I am ashamed I felt that way. He would have ended up serving a life sentence for my arrogance.

I wrote in my last post that you can only really complain about the outcome of something if you didn’t participate in the flawed system that let it happen. I now think I was wrong on that point, but that’s not my reason for bringing it up. A regular commenter on this blog wrote in response that, by that logic, “because your posts show that you think the criminal justice system, in which you are a participant, is flawed, you cannot complain about the system.” Is he right? Is that why my client’s sentence upsets me so much?

I set the case for settlement confident I could get a better offer that way, but also knowing my client was likely to plead under pressure from the judge in the event we got a great offer. I participated in a system that’s making a little boy grow up without a dad. A bright, funny, talented man is going back to prison. His dreams are on a ten-year hiatus. This is the drug war, and I’m a part of it. I minimized its damage as to one person, but he’s sitting in a cage because an undercover drug cop called him up and offered him $60.00 for a tiny little bag full of C17H21NO4. I’m disgusted with myself for participating. Worst of all, I worry I may not even have the right to complain.

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Posted in Clients, Government Rants | 6 Comments »

What Do You Mean I Can’t Complain?

July 28th, 2010

I don’t vote. There are exceptions, of course, but for the most part, I choose not to vote in any local, state, or federal elections. It isn’t because I’m lazy or too busy. It’s because I think the system is broken and find almost every option on almost every ballot so terrible that I would feel overwhelming guilt and remorse if I voted for any of them and they actually won.

Every politician is going to do something during his or her time in office that makes life worse for someone. I don’t trust politicians to do what they say they’ll do, and in general, I’m insufficiently educated to know what kind of impact most policies will have on the real world. I’m incapable of figuring out which one is going to be the best of the worst, so I usually sit it out altogether. I can’t stomach the thought of helping politicians ruin lives.

My decision not to participate in democracy angers many people immensely. Otherwise calm and reasonable people become furious. It strains friendships, especially when friends find out I regularly encourage others not to vote. The level of frustration in people who disagree with me tends to rise in direct correlation with age, though my non-voting royally pisses off people of all ages.

Almost always, people are mad at me for not voting because they want me to vote for something or someone they support. When I tell them I disagree with them and would probably vote against their preference, they become supportive of my decision not to vote.

I’m not going to bother laying out my entire no-voting philosophy here. Instead, I just want to address the worst reason people give me for why I should vote: “if you don’t vote, you can’t complain.” I hear that a lot. There are all kinds of mildly compelling reasons for why someone should vote, but that isn’t one of them. It doesn’t even make sense.

If you vote, you are participating. If you lose, it’s your fault because you participated. You played the game, and it didn’t work out so well for you. No complaining allowed. You lost, suck it up. On the other hand, if you didn’t play the game and still somehow managed to lose, you deserve sympathy. You were just minding your own business, not participating. You have the right to complain.

What if Adrian and I got together and decided we would vote on whether we get to take your car? Would you complain if we came and took your car after reaching a unanimous decision? On the other hand, what would happen if you and Adrian and I all got together and decided we would vote to see whose car the other two get to take? I can guarantee Adrian and I would vote that we get your car. You’d vote to get one of our cars, but you’d lose. Would you complain if we came and took your car? In which situation would you be more justified complaining?

The way I see it, you can only really complain about the outcome of something if you didn’t participate in the flawed system that let it happen. That’s why I hate the you-can’t-complain argument, and I have yet to hear a good argument for why I’m wrong. If you have it, please let me know.

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Posted in Uncategorized | 6 Comments »

No Life Experience Needed

July 23rd, 2010

I sat in the hallway outside a jail visitation room trying not to listen to the conversation going on inside the room. I really didn’t want to eavesdrop. I just wanted to get in and get out. I had three more visits before the day was over and couldn’t do my visit while the room was occupied.

Inside, a probation officer was interviewing a defendant for a presentence report. He pled guilty, and she was getting information for the judge who was going to sentence him. She wasn’t very good at keeping the volume of her voice at a reasonable level and kept saying “okidokie” to the guy’s responses. She was probably in her late twenties, and she was overweight. She had a social worker look about her. Her straight red hair was pulled back in a very tight ponytail. She was wearing black capri pants (“shpants,” as my sister calls them) and a lime green tee shirt.

When she asked the defendant about his past drug use, it was apparent that she didn’t have the slightest idea about recreational drugs. She asked him if he’d ever smoked crack, and he said yes. Then, she asked him if he’d ever used cocaine. His response of “uh…yeah…I said I smoked crack” might as well have been “c’mon you moron, crack is a form of cocaine you smoke.” He was irritated at her for not knowing.

He was going to prison for a burglary charge, and he had a significant criminal history. He had an explanation for why he did what he did. He had a sad life story. She responded with lots of okidokies and very little sympathy.

At the end of the interview, she asked him a series of questions to which he was only allowed to answer yes, no, or maybe. Here are some of the ones I recall:

Would most people commit crimes if they thought they could get away with it?
Is society to blame for most crime?
Do you agree that a person should do whatever it takes to make money?
Do you feel you’ve been treated fairly?

She also asked him these two questions:

True or false: schoolteachers just like having power over students?
True of false: police officers just like having power over people?

I would have failed her test. Whatever she was seeking, I doubt I could’ve given it to her. My presentence report would’ve said I had a bad attitude, no respect for authority, or maybe something worse.

I believe most people would commit crimes if they thought they could get away with it. Look at speeding. There are laws against speeding, yet almost every single person on the freeway speeds. The government tells us speeding is dangerous. People all seem to agree that speeding puts others in jeopardy, yet everyone complains about speeding tickets when they’re caught. People think they can get away with speeding, so they do it. Believing it’s a safety issue, they put safety second to convenience. Their convenience. Other people’s safety. If people thought they could get away with more, I think they’d give it a try.

I also believe society is to blame for most crime. A lot of people have it bad. They never had a chance. It’s largely society’s fault. Most of my clients have had bad home lives, traumatic life events, and terrible mental or physical difficulties. All of my clients have at some point been mistreated, marginalized, or ignored altogether by society.

As for the third question, if money is the only thing that can assure that someone survives, whatever-it-takes might be exactly what’s in order. The guy being interviewed may have burglarized a home to feed his family. He also may have done it because he has no respect for other people and their property. Yes, no, and maybe can’t possibly answer such a complex question. The question isn’t fair.

The last yes, no, or maybe question might have been the worst. Nobody’s treated fairly in our system. The state indicts in secret. Prosecutors overcharge. Laws are too broad, and mandatory minimums are too common and too harsh. Priors long past follow people to their graves. Defendants are pushed through the system like cattle. There’s nothing fair about it.

Finally, there are a lot of schoolteachers who just like having power over students. There are a lot of police officers who just like having power over people in general. True or false can’t possibly answer either of those questions.

After the probation officer finished, she shuffled past me with a faint smile on her face. I caught a glimpse of the defendant in the visitation room. He was grizzled, with a glass eye and scars everywhere. He was rail thin and had a head of curly black hair. I looked back at the probation officer. She waited impatiently to get buzzed out of the jail hallway while fiddling with her ponytail.

The stupid questions and the stark contrast between the probation officer and the defendant made a strong impression. She shouldn’t be in a position to report on him. He’s experienced things that she can’t even fathom. I’d guarantee it.

I imagine the probation officer sitting in her office, surrounded by bric-a-brac as she types up a report about that man’s antisocial personality and escalating drug use. A judge will read what she writes and commit a fellow human being to state custody for a term of years. The judge may have struggled less in his or her life than the probation officer.

What kind of sick, twisted system do we have where the coddled get to judge those among us who’ve had real life experiences?

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Posted in Courts, Government Rants, Practice in General | 3 Comments »

Paper Tigers

July 19th, 2010

Arizona’s rules of criminal procedure explicitly give courts authority to preclude evidence if a party violates the discovery rules. However, the Supreme Court of Arizona has stated that “preclusion is rarely, if ever, an appropriate sanction for a discovery violation.” As a result of that language, Arizona trial courts almost never preclude evidence, especially when that evidence is a witness who was untimely disclosed or failed to participate in a deposition.

I’ve tried arguing that preclusion is frowned upon because most published opinions deal with defendants noticing witnesses at the last minute. Defendants have a Sixth Amendment right to present witnesses, so the courts need to avoid preclusion so as not to infringe on defendants’ constitutional rights. I usually provide a string cite of cases frowning upon preclusion, all of which involve defendants’ last-minute disclosures, and then I cite a case suggesting that Arizona courts’ hesitance in sanctioning discovery violations with preclusion is a consequence of the Sixth Amendment. The state doesn’t have any Sixth Amendment rights, so preclusion shouldn’t be as rare a sanction when it’s the state that violated the rules. Makes sense, right? I think it’s a compelling argument, but courts almost never agree with me.

I also regularly argue that any other sanction is meaningless. According to the case law, determining which sanction to impose is left to “the sound discretion of the trial court.” I argue that trial courts are in the best position to give the rules some teeth. According to the case law, preclusion is only acceptable where less stringent sanctions won’t effect the ends of justice, and in most cases, anything short of preclusion or dismissal won’t make any difference at all. Again, I think it’s a compelling argument. Judges usually disagree with me.

The Supreme Court of Arizona is no doubt aware of the arguments I’ve made, and it clearly acknowledged the fact that rules need remedies in State v. Tucker, where the court said the following:

We have previously voiced our disapproval of the type of discovery practices exhibited in this case. We repeat our disapproval, this time mindful that appellate rebuke without reversal may amount to no more than an easily-ignored verbal spanking. While upsetting a criminal conviction is a drastic step, it is one we may in the future be required to take, pursuant to our inherent supervisory authority, if it is the only way to deter prosecutorial defiance of court rules.

Moreover, we note that it is the trial court’s responsibility to enforce our disclosure rules. Trial court judges are far more able than we to ensure that prosecutors do not ignore their Rule 15 obligations. When necessary, trial judges possess the power to invoke sanctions — including holding counsel in contempt — for failure to comply with discovery rules. Perhaps the time has come to make clear that these sanctions are not merely a paper tiger.

In most Arizona trial courts, even easily-ignored verbal spankings aren’t as common as they should be. When I ask for preclusion, pulling out the ol’ paper tiger quote from Tucker generally gets me rolled eyes or a “very funny, defense counsel” from the judge. They don’t take it seriously. They cite the opinion saying preclusion is rarely, if ever, an appropriate sanction for a discovery violation. That is, if they bother citing anything at all.

Tucker was a 1988 case. I’m waiting for trial courts to start taking responsibility to enforce the disclosure rules. I’m waiting for the Supreme Court of Arizona to take that drastic step they threatened.

They’re still angry, right? Maybe? I bet they are, and one day, just you wait. The time will come for them to make clear that discovery sanctions are not merely a paper tiger.

It just isn’t today. Any today. Ever.

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