Chandler Criminal Defense

At first blush, my answer is a resounding “no.” Everywhere I look, I see reasons to believe the radical experiment in freedom that is this great nation of ours has failed.

As I read and re-read the Declaration of Independence over at Defending People and The Defense Rests, I can’t help but think the average citizen wouldn’t find the King of Great Britain’s repeated injuries and usurpations all that bad. Did they make us safer?

On this Independence Day, I intend to celebrate my country. However, I will celebrate with trepidation. I will wonder how much longer we have as a nation before we become indistinguishable from every other country in the world. I will continue to worry that the average citizen loves his country the way most people love the sports franchise geographically closest to them. They are proud that it is near and familiar. It is in no meaningful way different from any other, but it is theirs.

I am proud of this great country’s history and traditions, but I become more skeptical about its government with each passing day. Freedom, our foundation, is an afterthought.

Today, we will eat hot dogs (which vendors cannot wrap in bacon), watch a government fireworks display (which we cannot put on ourselves), smoke a cigar (which we cannot do in more places each day), and lift a glass to our heritage (which we cannot do before driving, even if we are not impaired). We will not think about the sweeping ideas of freedom and human rights that have provided us with 233 years of prosperity. They will be washed away by a multimedia melange of pomp and circumstance designed to make us think the government is what makes us great.

I sincerely hope that all of you have a happy Fourth of July, but I wish you would keep a few things in mind. As you celebrate, please think about just what you’re celebrating. Think about what makes us great. Think about what makes us different. Is it freedom, or is it government?

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In Arizona, both superiors courts and limited jurisdiction courts can hear criminal matters. Limited jurisdiction courts are “limited” in that they only hear misdemeanors, not felonies. We have both county and municipal limited jurisdiction courts.

In a county limited jurisdiction court, or justice court, criminal cases are prosecuted by the county attorney. In a city limited jurisdiction court, they usually have their own prosecutor. In some places, it’s your typical prosecutor’s office. Others just contract with private attorneys to prosecute cases. Some town prosecutors are actually defense attorneys with prosecuting contracts. I couldn’t imagine representing defendants half of the time and prosecuting defendants half of the time.

Sometimes, there will be a city court and at least one justice court in the same building. They may even share a single courtroom or have the same judge. In Buckeye, the town court and the justice court share the same facility. G.M. Osterfeld is both the justice of the peace for the justice court and the magistrate for the town court.

The reason I’m posting about this is because the court situation in Buckeye and other jurisdictions can be extremely confusing. It’s particularly problematic in Buckeye, as the town’s website makes matters far worse.

Here is the web page for the court for the Town of Buckeye. I’m glad to see the court “upholds the law and administers justice fairly and efficiently and adjudicate to all cases brought,” whatever that means, but I’d like a little bit more information about the Buckeye courts. Luckily, there’s a link to the Buckeye Justice Court.

This is where the link takes me. The page tells me that “[t]he Buckeye Magistrate Court is not the same court as the Buckeye Town Court.” What? Didn’t I just get to this page from what should have been the page for Buckeye’s town court? Didn’t that court’s page refer to the town court as the “Buckeye Magistrate Court?” Didn’t it say G.M. Osterfeld was the “Town Magistrate” for the “Buckeye Magistrate Court?” This page should be for the justice court, not the magistrate court. The caption on court filings from the town court says “Buckeye Magistrate Court.” My head hurts.

Looking at the Buckeye courts’ websites, I see other problems. Why does each court need two phone numbers? Why do they need separate fax numbers? Why is the justice court open 8:00AM - 5:00PM Monday through Friday, while the town court is open 7:00AM - 6:00PM Monday through Thursday? Wouldn’t it be easier to have the same hours? It’s the same facility. How many cases could they possibly handle?

I’m also worried by the fact the page suggests the Buckeye Town Court, which may or may not be the Buckeye Magistrate Court, is not a court that “upholds the law and administers justice fairly and efficiently and adjudicate to all cases brought,” whatever that means. The Buckeye justice court’s page not only steals the title of magistrate court, but belittles the poor town court. The town court does more than just issue orders of protection and injunctions of harassment and charge fees for public records requests. I’ve handled criminal matters in both courts.

Based on Buckeye’s website, here’s what I know: the “Buckeye Justice Court,” which calls itself the “Buckeye Magistrate Court,” refers to the “Buckeye Town Court” as something different. What should be the website for the “Buckeye Town Court” calls the town court the “Buckeye Magistrate Court.”

Although the staff at both courts, which may or may not consist of the same people, are very adept at dealing with confused lawyers and defendants alike, maybe I can save them a little trouble by explaining to you what I think is going on.

No court is formally called the “Buckeye Justice Court.” The “Buckeye Magistrate Court” is the town court, and the “Estrella Mountain Justice Court” is the justice court. I’m not sure, but I suspect that the Estrella Mountain Justice Court was once called the “Buckeye Justice Court” or the “Buckeye Magistrate Court.” Many justice courts have changed their names over the years. If they did indeed start calling what was once called the “Buckeye Town Court” the “Buckeye Magistrate Court” after the justice court previous changed its name from the “Buckeye Magistrate Court” to the “Estrella Mountain Justice Court,” that was a profoundly stupid decision. The whole municipal versus county limited jurisdiction court thing is confusing enough without misleading websites and identical names for different courts.

All of this brings me to my points. First, Buckeye needs to update its website. The whole justice court versus town court thing is confusing enough as it is. Second, I don’t think each court needs two different phone numbers, separate fax numbers, and different days and hours of operation. They can’t handle that many cases. Even if lawyers mess up captions, which they will, can’t the staff just look at the case number and the defendant’s name and figure out which court should be hearing the case?

I’m crossing my fingers and hoping Buckeye reads this, updates its website, and eliminates the needless extra phone and fax numbers. I also hope Buckeye sends me some kind of award for my tireless work promoting government efficiency. If you’re reading this, Buckeye, you can send the trophy to my law firm’s address.

Hang around most Arizona courts for a little while, and you’re likely to see a plea fall through for lack of a factual basis. For those readers who don’t know what I’m talking about, Arizona’s rules of criminal procedure require that a court determine whether a factual basis exists for each element of the crime to which a defendant is pleading before it can enter judgment on a guilty plea. Evidence constituting the factual basis can come from any part of the record or from a defendant’s statements. There’s no reasonable doubt standard for a guilty plea. Instead, the court just has to find strong evidence of guilt.

In a few courts, the plea will simply have a provision that says, “factual basis taken from police report #123.” In others, the plea will contain a written factual basis for that specific plea agreement. In those two types of courts, pleas fall through far less often because of problems with the factual basis, though it can still happen. In most Arizona courts, the defense attorney has to state a factual basis, and the judge will ask the defendant if he agrees with what his attorney just said. Pleas fall through more often in those courts. Finally, there are some courts where the judge just asks the defendant about what happened. That’s often disastrous, and pleas regularly fall through in those courts.

Factual basis problems usually arise because the defendant disputes something somewhere in the state’s disclosure. Occasionally, it’s a big thing, like whether he actually had marijuana on him, or whether he drove the car while impaired at all. If that’s the case, he probably shouldn’t be entering a run-of-the-mill guilty plea in the first place. There are other options available to him, like a no contest plea or an Alford plea.

More often than not, though, the defendant takes issue with something minor and fixates on it. He doesn’t think he was read the Miranda warnings, though all of the police officers said he was. He doesn’t think he swerved or drove erratically because he’s a skillful drunk driver. Fair enough. Maybe he’s right, but he’s choosing to enter a plea. He doesn’t dispute the facts needed to support it, but instead wants to express his dissatisfaction with some other aspect of his case that’s upset him.

No matter how good a job a lawyer does of explaining what to do and what not to do at a change of plea, some defendants are going view the time for the factual basis as an opportunity to air their grievances. There’s something about that point in the change of plea that invites rants. Defendants will say that the cop’s a liar, that the victim made stuff up, or that it didn’t happen like an eye-witness said. Usually, they explain themselves in a way that makes it seem like they’re denying guilt altogether. The attorney can try to clarify the defendant’s statements, but most of the time the judge will just note there’s no evidence of the factual basis and set the matter for trial.

Just telling some clients not to go off on a rant isn’t enough, and going over everything in detail only works if they’re listening and capable of exercising self-control. Sometimes, you just can’t save a client from himself. He’ll give you the perfect factual basis when he first describes to you what happened, but when he gets in front of the judge, he tells a different story altogether. It’s something that every defense attorney has to deal with at some point.

When I first became a defense attorney, I thought lawyers whose clients did not seem to agree to the factual basis at the change of plea were plea agreement salesmen pushing crappy deals on unsuspecting clients. That didn’t last very long. I soon realized that the problem wasn’t the attorney, but the system itself.

In our cold, impersonal system, the version of events presented by the victim or the officer is often viewed as being confirmed as true in its entirety the moment the defendant enters a change of plea. We give the defendant a shot to say what happened when it’s time for the factual basis, but we punish him for saying what may be the truth if it deviates from what we suspect happened. It’s rare that I have a client who doesn’t dispute some part of the state’s version of events.

I wish every jurisdiction required that the factual basis be negotiated by the parties and written down, but the practical reality is that many prosecutors lack the requisite time and knowledge of their cases. Pleas are going to continue to fall apart regularly. Although it’s usually not a good thing when that happens, it does tells us a lot. It tells us the state’s suspicions may not always be correct. It tells us our system is imperfect and that we may be convicting innocent people. It also reminds us that clients can be irrational and unpredictable. Too bad more people aren’t listening.

Lately, I’ve been hearing a lot about state, county, and municipal budget problems. Both prosecutors and public defenders tell me about hiring freezes, forced unpaid vacations, and pay reductions. Judges seem hesitant to sign off on any order that will cost the court much money. One county’s superior court apparently has a new policy of authorizing no more than $200.00 in initial compensation for contract defense investigators, billable at a rate of $20.00 per hour. I’m sure that’s affected the quality of the investigators on the contract list considerably. That same court has a brilliant new policy involving orders.

To give you some background, when filing many types of motions, defense lawyers will attach a proposed order with everything filled out except for the lines where the judge needs to sign and date. For things like motions to transport a defendant from prison to court, motions for a deposition, or motions to appoint, the judge will be irritated if you don’t attach an order. He’s going to grant it without much thought, maybe even without reading it, so you should have prepared something for him to quickly date and sign. If you didn’t, his judicial assistant will probably have to do your work for you.

After you submit the motion and the judge has granted it, you need to get a copy of the signed order. The signature may be a stamp, or it may be a real signature. Regardless, your proposed order is useless until it’s signed. I doubt you could even get one of those $200.00 investigators to start work unless he knows for sure that he’s been authorized to get paid. Before you receive the order, you probably won’t know when it was granted or even if it was granted.

Most courts mail a copy of the granted order to defense counsel. The clerk of the court I mentioned above, however, decided that postage and copies are too expensive. Now, they want defense attorneys to give them an extra copy of the order along with a self-addressed, stamped envelope. My complaints with that policy fall into two distinct categories: problems with the reasoning behind it, and problems with the way it’s actually carried out.

I can understand why the clerk wants to save money, but why do things like this always have to be at the expense of the defendant? Whenever someone has to bear some cost, everyone immediately looks to the defense. Losing money because prosecutors are filing more cases than the system can take? Assess a big prosecution fee against the defendant! Prosecutors overwhelming the system by forcing too many cases to trial due to absurd plea bargaining guidelines? Discount appointed defense counsel’s trial bill! I’m tired of seeing defendants pay for government excess. The county attorney’s office is right down the hall from the clerk, so the policy doesn’t have any effect on them. The cost of the new policy in criminal matters thus falls only on defendants. Not surprising, but irritating and wrong nonetheless.

Additionally, I doubt much thought went into the actual savings of the policy. Here’s what I bet was the extent of the reasoning: “making defense lawyers pay for something means we don’t pay for something, which means we save money.” I seriously doubt anyone actually bothered factoring in the cost of training people on the new policy, the cost of notifying attorneys of the new policy, and the effect of temporarily having at least one extra, duplicate piece of paper for almost every motion in almost every file. Courts have trouble keeping track of paperwork as it is. Also, I doubt they considered the cost of having judges sign or use their signature stamps twice as much, which leads me to one of the primary practical failings of the policy.

Every time I file a motion and order, I give the court an extra copy of the order. However, I almost always receive a copy of the signed order instead of the incomplete copy I provided with a stamp or signature added to it. What do they do with the copy I gave them? I think some of the clerks feel that having the judge sign or stamp two copies results in two originals, so they just throw away the one I give them and make a copy after the judge signs it. With that in mind, how on earth do they justify the policy? Honestly, I feel like the court still likes it for no other reason than the fact it’s something else for the defense to do.

Believe it or not, there is one even dumber practical problem with the way the policy works. If an attorney forgets to provide a self-addressed, stamped envelope, the clerk will mail the attorney a letter telling the attorney he or she forgot it. Although the letter threatens that the clerk will not mail out any future letters or orders, the clerk usually continues to mail out orders, each with the accompanying angry letter. Many attorneys in the jurisdiction have a box in the clerk’s office and affix a post-it note to the extra order asking the clerk to put it in their box. When the clerk loses the post-it note, which is not uncommon, they will mail the attorneys the same letter he would’ve gotten had he been unaware of the policy.

From what I recall, the letter lists the case title, the case number, the date of filing, and the type of order, so it likely took up a little bit of someone’s time to create. It’s also an extra sheet of paper, and thus offsets the extra copy the defendant was supposed to provide.

To summarize, the policy likely took a fair amount of time, effort, and resources to create and implement, and it doesn’t actually save paper because they don’t use the extra copy anyway. In fact, it wastes paper because they mail out a letter with the order if the defense attorney forgets about the policy. Furthermore, enforcement takes up time that employees could have used for other, more important things, and it creates additional paperwork for the court to shuffle around.

All things considered, I’d say this is another brilliant government idea.

This story is absolutely unbelievable. At least a judge finally put an end to it, but how many years have people convicted by such blatantly false evidence had to serve? If these people were convicted by overwhelmingly obvious sham evidence, why weren’t all of the jury verdicts overturned? I’m assuming it was the bulk of the State’s evidence in each of the cases, which I think it is a fair assumption. Tracking over water? Picking up a scent six months later?

The officer should be in jail, and the prosecutors should be poster children for why absolute immunity is a bad idea. I don’t know all of the details, and I know I’m making the above statements without investigating the cases and writing in anger. However, this is simply horrible. The governor or the attorney general needs to launch an investigation now.

Exactly one year ago, we started this blog. The goal was to put up one post per week, and to date, there have been 88 posts.

Unfortunately, there have only been 96 comments despite the fact hundreds of people subscribe to our feed and we get thousands of hits each month. The new goal is to encourage more comments.

Any suggestions on how we do that?

I couldn’t agree with this more. I’ve had a fair amount of contact with law students at ASU through moot court judging, hiring clerks and research assistants, and just being an alumnus. I’ve met a lot of bright, articulate law students. I haven’t met a lot of impassioned law students who want to be advocates and truly believe in what they do. Most of the law students I meet, like most of my fellow law students when I was in law school, don’t know what they want to do. They just want a job, and any job will do.

Maybe that works if you want to write wills or review contracts, but in criminal defense, that won’t cut it. It’s a calling. It’s stressful, time-consuming, frustrating, depressing, and generally thankless. A lot of the time, it just flat-out sucks. However, the people who do it for the right reasons wouldn’t think of doing anything else. We eat, sleep, and breathe criminal defense. If you end up a criminal defense lawyer because it’s the job you happened to get, you are probably in it for the wrong reasons. It’s that simple. You should quit before you do a disservice to any more clients.

When people ask me if they should go to law school, my response is always “no.” They’re asking the wrong question. The people who should be lawyers, criminal defense lawyers at least, are the ones who want to know how they can do it, not if they should do it.

If it’s your calling, this very moment is the very best time imaginable for you to become a criminal defense lawyer. If it isn’t your calling, forget about it.

We have time to charge and convict people of things like this. Basically, Bishop Rick Painter of Phoenix’s Cathedral of Christ the King was convicted of a criminal noise violation for ringing the bells at his church. Here is more information about the case, with a video. Here is the judgment and sentence order, and here is a press release from Alliance Defense Fund, the attorneys he’s retained for his appeal. If you want to check out the church’s website and listen to what may be the bells that got him in trouble, click here.

The law he was convicted of breaking was section 23-12 of the Phoenix City Code, “Creation of unreasonably loud and disturbing noises prohibited.” It provides that “[s]ubject to the provisions of this article the creating of any unreasonably loud, disturbing and unnecessary noise within the limits of the City is hereby prohibited.” Section 23-11(A) in the same article, “Nuisances,” explains that “[a]nything which is obnoxious to health, or is indecent, or is offensive to the senses, or is an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property by any considerable number of persons, or unlawfully obstructs any public street, alley, sidewalk or highway is hereby declared a nuisance and may be abated by order of the City Court. Every person who commits or maintains a nuisance shall be guilty of a misdemeanor.”

The whole thing seems outrageous to me. I’d expect that what the bishop did would at most get him a letter from the homeowners’ association. I doubt there was some kind of prior order, as he wasn’t charged with violating one. I also wonder how many warnings he received, but more than anything, I’m confused by the reaction the case has gotten. Considering the facts of the case, I don’t understand why people aren’t making a bigger deal out of this.

Why aren’t local religious leaders up in arms? Hell, why aren’t national religious leaders up in arms? Is it because he isn’t affiliated with your typical Baptist, Methodist, or Catholic church? Maybe no one here cares because other Phoenix churches don’t have bells. Maybe people don’t like the fact he uses prerecorded bells instead of the real deal.

Also, why aren’t Christian-values politicians complaining about this? Has our collective desire to have quiet little cookie-cutter neighborhoods finally triumphed over our supposed love of religious freedom?

It’s inconceivable to me that something as common and traditional as church bells could be considered a criminal nuisance. It even sounds like what he was doing was tasteful. In one video, some of the neighbors said they liked the bells. I can’t think of many class one misdemeanors where some of the victims have said they enjoyed and even looked forward to the crime. I also can’t think of many instances where I’ve seen someone convicted of a non-DUI first-time misdemeanor offense get a deferred jail sentence and a full three years of probation. That’s the maximum permissible term for the class of offense. It’s also twice as much as DMX got in his felony case involving aggravated assault on an officer. The court must have really wanted to make an example of poor Bishop Painter.

I find the court’s hand-written order to be especially problematic. There are plenty more Christian holidays than just Ash Wednesday, Palm Sunday, Good Friday, Easter Sunday and Christmas Day. A city court judge shouldn’t be telling a church which of its holy days are suitable for bell-ringing. The court also shouldn’t be telling a church when it’s appropriate to observe its traditions. Bell-ringing is probably appropriate more often than just every Sunday from 8:00 a.m. and 12:00 p.m. Also, how did the court come up with the two-minute rule? Where did it get the 60-decibel limit?

As some articles mention, section 23-15 of the City Code provides exemptions for city vehicles, excavations or repairs by the City or State at night, the use of amplifiers or loudspeakers for noncommercial public addresses, and ice cream trucks. Specifically, the law states as follows:

None of the terms or prohibitions of sections 23-12 through 23-17 shall apply to or be enforced against:
(a) Any vehicle of the City while engaged upon necessary public business.
(b) Excavations or repairs of bridges, streets or highways by or on behalf of the City or the State, at night, when the public welfare and convenience renders it impossible to perform such work during the day.
(c) The reasonable use of amplifiers or loudspeakers in the course of public addresses which are noncommercial in character, and which amplifiers or loudspeakers are not used in connection with any moving vehicle.
(d) The use of a hand-operated device producing not in excess of seventy decibels of sound, “C” scale, measured a distance of fifty feet from the instrument emanating sound from bicycles, pushcarts, or other vehicles, or from vehicles in connection with the sale or display of merchandise; provided, that such devices or musical systems:
(1) Shall be operated only while the bicycle, pushcart or vehicle is in motion;
(2) Shall play only pleasing melodies; and
(3) Shall not be played between the hours of 1:00 p.m. and 3:00 p.m., and between the hours of 9:00 p.m. and 10:00 a.m.

I was amused by the “pleasing melodies” part, but that’s another post entirely (I’m fairly sure that an ice cream truck playing Penderecki’s Threnody to the Victims of Hiroshima would be illegal, but I’m on the fence about whether the court would find the melodies in Schoenberg’s Verklärte Nacht pleasing). What I wondered after reading the statute was why the judge set more restrictive times and a lower decibel level than those permitted for ice cream trucks. Was that intended to be an extra little jab? Was the court letting the church know that it respected the church’s religious traditions less than it respected the tunes played by the neighborhood ice cream truck?

I wish I had more information about what happened, but from what I’ve read, it looks like this poor guy’s rights have been trampled in all kinds of different ways. I hope his attorney made a good record at trial and that Alliance Defense Fund writes a strong appeal. In the meantime, however, at least I’ll sleep well knowing Arizona authorities have solved all the serious crimes and can focus on things like this.

Article 2, Section 22 of the Arizona Constitution says that “[a]ll persons charged with crime shall be bailable by sufficient sureties, except . . . [f]or felony offenses committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge.”

Knowing that, what do you say when you know your client’s new offense was allegedly committed while he was out on bond for another felony offense and the judge asks, “counsel, do you have any recommendations regarding bond?” Does it matter if the same judge is assigned to the client’s other case and presumably knows that the client was out on bail when he or she supposedly committed the new offense? Does it matter if the prosecutor doing coverage, who recommends a bond amount, is the assigned prosecutor on the client’s other case and presumably knows the client was out on bail when he or she supposedly committed the new offense?

In a situation like that, everyone but you is operating under some kind of false assumption. It’s not uncommon. In fact, I encountered a few situations like that last week (hence the post). They either don’t remember your client was on release, or they don’t know about Article 2, Section 22. Regardless, you know they’re wrong. You’ve probably told your client he isn’t entitled to bond, and when the judge asked you for a bond amount, the client was probably grinning from ear to ear thinking it was his lucky day.

In a situation like that, the State Bar of Arizona would probably direct you to Ethics Rule 3.3, Candor Toward the Tribunal. Here it is:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Sure, it’s an important rule, but does it really apply? The constitution is legal authority, but is it directly adverse to the position of your client? Your client wants bond, obviously, but his position was that he couldn’t get it. The judge and the state are the ones who hold the position which is contrary to legal authority. Also, is arguing for bond a false statement of fact or law? Doesn’t the rule seem to only require you correct a false statement of material fact or law that you previously made to the tribunal?

Some of these questions are answered to some degree by ethics opinions, but I don’t think the answer is clear. How big of a factor is the way the judge words the question? Does merely asking for recommendations regarding bond give rise to a duty to tell the court your client isn’t entitled to it? What if the judge assumes the client gets bond and just asks you for an amount and a reason? What if he just asks you for an amount? Just a reason? Do you argue for the bond amount you know your client wants, or do you just throw out a number and say as little as possible? Is the way you word it going to make a difference? What if you say, “if the court is inclined to set a bond amount, X amount is appropriate for Y reasons?” Can you argue freely if you assume the court and prosecutor think proof is not evident or the presumption not great as to the present charge?

You can probably guess by now that I’m just going to ask questions here without really answering any of them. Every situation is different, so I don’t think there’s any single right answer. However, I think it’s fair to say any good criminal defense lawyer is going to keep his or her client’s interests in mind at all times while advocating for the clients within the boundaries of the ethical rules (duh). In the right situation, there are ways to argue for what your client wants.

One fascinating thing to me about what I’ve described is that I don’t recall law school professionalism ever covering a fact pattern where everyone was wrong but you. Maybe they thought learned judges and prosecutors didn’t make mistakes like that. If so, they’re wrong. Situations like the one I’ve described happen regularly. More often than most people think.

Because of that, it’s probably not a bad idea to figure out in advance how you’d react.