Archive for August, 2008

Terrible Policies

Wednesday, August 13th, 2008

I won’t name names here, but there is one prosecutor’s office in Arizona that has particularly rigid and often ridiculous office policies regarding plea bargains and a number of other important things that, in my opinion, should be left to the sound judgment of individual prosecutors. Some of the office’s policies are so draconian and inflexible that they are known by pretty much anyone who is even minimally involved with Arizona’s criminal justice system. I imagine 99% of people reading this post instantly knew which office I meant after reading the first sentence.

Anyway, in two cases this year where I wrote the assigned prosecutors letters presenting overwhelming exculpatory evidence and requesting the cases be dismissed, I had conversations like this:

Me: Have you looked over what I gave you?
Them: Yes.
Me: Are you willing to dismiss the case?
Them: We can’t dismiss these cases.
Me: Are you serious?
Them: Yes.
Me: You mean to tell me that you can’t dismiss any case involving these charges?
Them: Yes.
Me: Even with all the exculpatory evidence I gave you?
Them: Yes.
Me: Even if you know the suit is without merit?
Them: (silence)
Me: I’m pretty sure you’re not supposed to pursue charges unless there’s a non-frivolous good faith basis in law and fact.
Them: Sorry, it’s our policy.
Me: And that trumps Arizona’s Ethics Rules?
Them: (silence)
Me: Is this a written policy?
Them: (silence)
Me: What if I had a video of someone else committing the crime?
Them: Videos can be doctored.
Me: What if my client was incarcerated elsewhere when it happened?
Them: I’m sorry, I can’t dismiss these cases, and I’m very busy.

In all fairness, I should admit that one of those two cases was ultimately dismissed (though not due to the exculpatory evidence I presented) and the other one resulted in a plea to the only charge there was a factual basis to support, but my head still hurts after trying to understand how a no-dismissal policy works in light of Ethics Rule 3.1.

Assuming some high-ranking prosecutor does have authority to dismiss any case, what happens if the defense attorney doesn’t keep moving up the chain of command? Will the assigned prosecutor really proceed with a trial they can’t possibly win? Won’t that prosecutor be violating the ethics rules as soon as he or she realizes the case is unsupported by evidence? Sure, no evidence 100% guarantees guilt or innocence, but I think it’s an enormous waste of public money to not allow the person with the most intimate knowledge of a loser case to dismiss it.

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Posted in Practice in General, Professionalism, Prosecutors | 1 Comment »

Precluding the State's Objections to a Motion

Monday, August 11th, 2008

Rule 16 of the Arizona Rules of Criminal Procedure governs Pretrial Motion Practice. Rule 16.1, which is entitled “General Provisions,” includes the time periods in which motions and responses must be filed. The rule provides in relevant part that “[a]ll motions shall be made no later than 20 days prior to trial” and “[t]he opposing party shall have 10 days within which to file a response.” As a remedy for untimely filing, the rule provides that “[a]ny motion, defense, objection, or request not timely raised . . . shall be precluded, unless the basis therefor was not then known, and by the exercise of reasonable diligence could not then have been known, and the party raises it promptly upon learning of it.”

It seems clear enough. If I file a motion after the deadline, unless I didn’t previously know the basis for that motion, no matter how valid it might be, it will be precluded pretty much every time. However, prosecutors regularly do not bother responding to valid defense motions. Instead of precluding any objection by the state as not timely filed and granting the motion, trial courts almost always look into the issue on their own and deny the motion on grounds the state never argued. Often, I can’t believe how far courts have to go on their own to find reasons to deny a motion the state ignored.

I understand why a court might want to avoid throwing out a case because a prosecutor didn’t respond to a baseless motion to suppress or dismiss, but I can’t fathom why a court would go out of its way to find reasons to deny a valid motion to which the state didn’t (and maybe even couldn’t in good faith) respond. Although most of the defense attorneys with whom I’ve discussed this issue do not bother making a rule 16 preclusion argument, they have all acknowledged that the plain text of rule 16 requires preclusion. I’ve even spoken with prosecutors who track response deadlines with special care because they fear they will be precluded from objecting. While it’s nice to know that some prosecutors try to follow the rules, it doesn’t change the fact that, from what I can tell, they don’t have to. What is the point of giving the state a deadline if it isn’t going to be enforced? Sometimes, the trial court might even do their job for them.

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Posted in Procedural Rules, Prosecutors | No Comments »

Actual Control (Again)

Wednesday, August 6th, 2008

Recently, I was surprised when Division Two looked at an issue very close to (if not the same as) something I previously discussed in a post. The issue in State v. Zaragoza was “actual control,” and most of the commentary I’ve read seems to claim that the opinion narrows the term significantly. Here it is. Although I have no doubt that it’s a step in the right direction and may well assist me in future motions, I am skeptical about how positive an effect the opinion is likely to have.

Like any appellate opinion, it can be narrowed by its facts. The time line isn’t entirely clear to me, but I think the officer was on top of things as soon as the defendant got in the car. I doubt that the case will have any impact at all where officers do not see the defendant approach and get into the vehicle. After all, the opinion does nothing to prevent the inference that a defendant in a car that’s turned off drove intoxicated to the place where the officer found him. I think prosecutors will continue to do things exactly the same as they did prior to Zaragoza and argue to the jury that the defendant either intended to drive or drove drunk to get where the officer found him.

As for the subject of my previous post, operability and its relationship to actual control, I don’t think the Zaragoza will change anything. That’s because of this statement: “the legislature intended to criminalize an impaired person’s control of a vehicle when the circumstances of such control—as actually physically exercised—demonstrate an ultimate purpose of placing the vehicle in motion or directing an influence over a vehicle in motion.”

The question will be how courts interpret “as actually physically exercised.” Does that mean as exercised using that particular vehicle, or as exercised by the driver without reference to how the driver’s actions affected the vehicle? You can actually physically exercise control over an inoperable car in a manner that demonstrates an ultimate purpose of placing the vehicle in motion just as easily with an inoperable car as you can with an operable one.

I hope Zaragoza will make some kind of difference, but I’m not holding my breath.

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Posted in Arizona Cases, DUI | 1 Comment »

Arizona's Most Irritating Statute?

Monday, August 4th, 2008

There are a number of laws in Arizona that bother me, but the one that most consistently makes me shake my head in disgust is A.R.S. 13-1207. It provides that an inmate who “commits assault upon another person with the intent to to incite riot or who participates in a riot is guilty of a class 2 felony.” It’s a serious charge, so it seems like the statute should be pretty well written. Unfortunately, it isn’t.

Although making it a class 2 felony seems excessive, I think I have a good grasp of what constitutes an assault with intent to incite riot. On the other hand, I have no clue what participating in a riot means, and the legislature and the courts haven’t provided any helpful definitions.

Is there an intent element to participating in a riot, or can you inadvertently participate in a riot? Do you need to know it’s a riot? What constitutes a riot anyway? Who gets to decide if something is a riot? Should we look to the chapter 29 riot statute? What counts as participation?

It seems unfair that someone who’s being unruly could for the same conduct get anywhere from a misdemeanor disorderly conduct conviction to a class 2 felony conviction depending on the context. Without any definitions to narrow the statute, I think a jury could find pretty much any prison incident to be riot and consider anything other than hiding in your cell to be participating. Statutes shouldn’t be that vague, especially when mandatory prison times is involved.

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Posted in Arizona Statutes | No Comments »

Nationwide Insanity

Friday, August 1st, 2008

In determining whether a sentence is cruel and unusual punishment, courts often look to three factors: (1) the gravity of the offense and the harshness of the penalty, (2) the severity of the penalty as compared to penalties imposed for other criminal acts in the jurisdiction, and (3) the severity of the penalty as compared to penalties imposed for the same crime in other jurisdictions.

The first factor is fairly easy to satisfy, as many sentences are disproportionate to the crime. For instance, Arizona’s laws regarding personal possession of child pornography or so-called “dangerous” offenses often result in unbelievable sentences even though the crime may involve no real, identifiable victim.

The second factor is also easy to satisfy in most cases. Luckily, every kind of crime doesn’t get enough political attention to make our legislators create absurd mandatory prison sentences, so some crimes still carry reasonable penalties. It’s normally pretty easy to find a more serious crime in Arizona that carries a lesser penalty.

The third factor is the one that amuses me. Lawmakers love getting tough on crime, so what happens when every state loses its mind and gets ridiculously tough on something? Sure, the penalties might be “cruel,” but they won’t be “unusual.” Why not convince every state to pass a law castrating first-time child porn viewers? The third factor could never be satisfied (in this country at least), as cruel punishment would be the norm.

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Posted in Uncategorized | No Comments »