Chandler Criminal Defense

I could make a very long list of idiotic misconceptions police officers have about drugs, but my favorite by far is the legendary marijuana green-tongue. Believe it or not, police officers are actually trained to look for a green tongue as an indicator of marijuana use. In fact, the dreaded green-tongue even made it on the NHTSA’s website. I couldn’t make this stuff up.

I seriously doubt there is any real scientific research supporting that theory. Sure, the NHTSA claims it’s true and cites plenty of studies, but I’m not about to read every single resource they cite to see how exactly they came to the conclusion that a green-tongue means recent marijuana use. Can anyone point me to the specific study? If there is a study, is it peer-reviewed?

I’m going to go out on a limb here and say that there’s no way any self-respecting, independent scientist would have a bunch of test subjects smoke marijuana so he could note the color of their tongue. My guess is that some drug-prohibitionist government lackey who had never actually used marijuana or even associated with marijuana users was asked to list every conceivable sign of marijuana use. Something as stupid as the infamous marijuana green-tongue just had to come from the government.

People often call me to see if I can “expunge” an old criminal conviction for them. In Arizona, it’s called “setting aside” a conviction, and it’s a fairly simple process in most cases. Interestingly, it’s usually more difficult to seal a record of an arrest than it is to set aside a conviction. The only statutory provision on point merely permits a court to enter on the record that the person has been cleared and order that law enforcement agencies and courts no longer release the record. It seems a little strange to me that it takes more work to to seal a wrongful arrest than it does to set aside a rightful conviction.

Imagine a case where the prosecution and defense reach an agreement by the first pretrial conference. At that pretrial, the defendant enters a change of plea in front of a judge who sets the matter for sentencing. The defendant, who is in custody, will be released at sentencing if things go according to plan, and all of the parties involved are extremely satisfied with the result.

At sentencing, the judge can’t find the plea in the file. The court, on its own, continues the matter for a brief period of time. However, at the next sentencing, the court still has not found the plea. Another brief continuance. At the next sentencing, when the defense attorney tries to take issue with parts of the probation officer’s sentencing report, the judge notices the report isn’t in the court’s file. Continued again. Finally, the court gets the whole file, but the judge decides to reject the sentencing provisions in the plea despite the fact the defendant, the state, and the probation department all recommend acceptance.

The defendant absolutely refuses to go to trial, and the judge was inclined to give a far harsher sentence than the one in the plea, so the defendant withdraws and requests a change of judge. Unfortunately, the court loses the file for a short time and reassignment takes much longer than normal. After tweaking the agreement to satisfy the new judge, everything finally goes through as planned.

Court errors, like the ones in the scenario above, are fairly common. Because a change of release conditions was not possible, the defendant, through no fault of his own, was forced to wait in custody far longer than he should have. Luckily, it’s rare that everything goes wrong in one case, but it can and does happen. Clients get upset and ask me what I can do. They wonder whether I can file a motion to dismiss, and it’s hard to explain to them that there are relatively few options when the court, not the state, causes the problems.

The system does provide some remedies when the state’s errors cause a defendant to be wrongfully incarcerated, though I believe they are inadequate and rarely granted. On the other hand, courts can in many instances cause defendants to lose their liberty with no real recourse at all. I think most judges seriously try to achieve a just result and protect defendants’ rights, but every court seems to have at least one employee who doesn’t care about doing their job right. I wish more court employees would realize that when they make mistakes, it may profoundly affect someone’s life.

Every once in a while I come across a ruling that’s so unfair I can hardly believe what I’m reading. State v. Detrich, a 1997 Arizona Supreme Court case, contains one of those rulings.

The defendant argued that the trial court erred in refusing to use his proposed jury questionnaire, which included questions about jurors’ racial attitudes, biases, and prejudices. The Court ruled against the defendant because he did not show that the trial judge’s failure to submit his questionnaire to the jury “resulted in a biased jury or rendered his trial fundamentally unfair.”

The Court claimed the defendant offered no evidence of bias or prejudice of the jurors. Although the defendant argued there was no way of knowing whether they might have had some kind of racial animus because the trial court had not allowed his questions, the Court said that “speculation” was insufficient to meet the burden of proving that he was not provided a fair and impartial jury.

I hope that the defendant’s failure to make a contemporaneous objection on the issue played a large part in the Court’s decision, but the opinion says the defendant’s “speculation” about racial attitudes was without merit regardless.

If the defendant’s arguments really are just insufficient “speculation,” the Court created an awful situation. The only way to successfully argue the proposed questions should have been submitted would be by showing the jury was biased. The only way to show the jury was biased would be by asking them the proposed questions. How can anyone in their right mind think that’s fair?

Sometimes, doing research on Lexis, Westlaw, or in a law library can be needlessly time-consuming. Treatises, handbooks, and encyclopedias are helpful, but they aren’t always organized intuitively or updated often enough to provide guidance when I’m dealing with a rapidly-evolving issue. Although it’s essential to verify everything and ultimately base any argument or advice on proper sources, occasionally I’ll use a simple internet search to get an overview of an issue.

This is one of my favorite legal websites. It’s very interesting and seems to turn up frequently with Google search terms relevant to the confrontation clause. The sixth amendment is a fairly tricky area of law, and new cases tend to pop up relatively often. It’s nice to know that I can keep abreast of some of the latest developments, and reading the blog in its entirety helps shed a little light on the ins and outs of some of the cases interpreting Crawford v. Washington over the past few years.

A lot of lawyers and law professors have blog or websites that are highly informative, and I think that much of the information they post isn’t presented nearly as well anywhere else. I’m not canceling my research subscription anytime soon, but I think the internet can do a lot to supplement even the most knowledgeable attorney’s understanding of an area of law.

Although Arizona courts have on multiple occasions explained that statutes of limitations are to be construed liberally in favor of the accused and against the prosecution, in practice, that doesn’t make an awful lot of difference. According to at least one Arizona court, our criminal statute of limitations is explicit. Unlike most states’ statutes of limitations, which begin running at the time of the offense, it doesn’t begin to run until the state actually discovers or should have discovered the offense.

The law allows some serious injustice to take place as long as it isn’t the state’s fault. A victim can wait as long as he or she pleases before going to authorities, and as long as there’s no reason the state should have known earlier, charges can go forward. What would stop a victim from waiting until key defense witnesses die before coming forward? Why not wait until the defendant has more to lose and is likely to take a plea?

Also, why not wait until the defendant has more personal assets? A victim could potentially use Arizona’s criminal statute of limitations to extend the time for filing a civil suit based on the same conduct. While a victim would normally have to file a civil claim in a relatively short window of time after being wronged, a special law extends the civil statute of limitations for one year after the final disposition of a criminal proceeding arising from the same conduct. If a victim misses the civil statute of limitations, why not go to the police and get a criminal case started? The victim will then have a year after that’s done to file a civil suit.

Arizona courts claim statutes of limitations are designed primarily to protect the accused from the burden of defending himself or herself against charges of long completed misconduct. If that really is the purpose, it shouldn’t matter whether the delay is caused by the state or the victim.

I regularly receive calls from people who want to fight their photo radar tickets. They are generally furious about the situation, calling the cameras “the devil’s work,” “big brother watching us,” and other far more colorful things I won’t mention here. Although people caught by the cameras hate them, I’ve found that most people I meet think the cameras are great. If you’ve read this blog much, I’m sure you can guess what I think.

A lot of people justify photo radar because they think it will prevent speeding and free up law enforcement personnel to deal with more serious offenses. In general, I doubt photo radar will really do what its proponents claim, but I’d rather save that argument for a later post. Honestly, I don’t care effective photo radar is.

I’ve heard British people proudly proclaim that there are more CCTV cameras in London than in all of the USA, and that they do an amazing job of preventing crime and permitting effective use of law enforcement resources. I suspect (and hope) that most US citizens who are fine with photo radar would oppose one CCTV camera for every fourteen people in the USA. Why the difference?

If it’s because photo radar supposedly only captures people who break the law, then why not have the CCTV cameras on but only let the police view the recordings after a crime’s been reported in the area. I hope most US citizens wouldn’t stand for that either. I’d like to think that opposition stems from a healthy distrust of those to whom we give power, something that distinguishes our country from a lot of other places.

Another group of people try to justify photo radar by describing all of the ways the government has promised to limit its use. They say there will be no license points or school to attend for a violation, or that the government will only ticket the actual driver, whom they must positively identify. They claim cameras will only be put up on state highways, which apparently means freeways and interstates, not rural roads. There will supposedly be warning signs posted as well.

Do you really think the state will forever spare violators traffic school or points and abstain from forcing the car’s owner to reveal the driver’s identity? Should the rural/urban distinction really make a difference? Couldn’t CCTV too be justified if we just put it in big cities, not suburbs or rural areas? If signs make photo radar okay, couldn’t they also legitimize CCTV all over the state?

Why are we so willing to trust the government to continue to limit itself in using technology against us? When was the last time the government, on any level, limited the scope of a cash cow program? If our rights and some unwritten promises stand in the way of effectively and profitably enforcing traffic laws with these machines, do you really think the government’s going to keep it’s word?

History has shown that the government doesn’t keep its promises. Wasn’t the income tax supposed to be a temporary measure, a “war tax?” We can’t even make the government do the things it’s promised to do explicitly and in writing. If you don’t believe me, have a look at the US Constitution’s sixth amendment right to a jury trial in all criminal prosecutions. If we can’t make the government respect the promises set forth in the Constitution, why do we think the government will honor unwritten promises?

I also recently received an email defending the use of photo radar by claiming that what the government makes from the cameras is not actually “revenue.” Apparently, if you don’t use the cash to balance the budget, but instead use it to deal with public safety issues or increase border security, it isn’t revenue. I understand the definition of revenue technically changes when the government is involved, but I really don’t like the government’s hypocrisy when it comes to this kind of stuff. Do you think the government would be persuaded that I don’t owe any taxes because I had no “revenue” due to the fact I spent all the money I earned on things I thought were important or felt I had to do?

The same email also argued that if we don’t do something as a state, the federal government will begin imposing far worse measures. Using that logic, a state or locality could enact all but the absolute most appalling laws by arguing the federal government will do worse if they do not act.

I haven’t heard a single argument in favor of photo radar that made me even slightly warm up to idea. Quite frankly, it disgusts me that people are so enamored with the promise of safety that they’re willing to let the state profit from them using unmanned machines supplied by the lowest corporate bidder. I challenge anyone to read the Declaration of Independence and with a straight face tell me that the idea of government cameras spying on citizens isn’t plainly and wholly incompatible with the radical ideas of freedom and justice on which this country was founded.

I had a discussion a month or two ago with someone who really embraced the idea of outlawing pit bulls. His concern was that if people weren’t limited in what kind of dog they could own, some people would breed and train extremely powerful, vicious dogs who’d eventually wreak havoc on society. There would be roving packs of pit bulls bred and trained to kill.

I hear a similar argument every time I criticize DUI laws. When I suggest lesser penalties (and especially when I suggest eliminating DUI laws altogether), people say that if there weren’t strict DUI laws, everyone would drive drunk. In essence, there would be roving packs of drunk drivers liquored up and ready to kill.

Sure, eliminating DUI laws might result in an increase in the number of drunk drivers, but how many more drunk drivers would there really be? I don’t think a lot of people believe roving bands of evil, genetically-altered super-dogs are going to be a problem if we don’t get a breed ban passed right away, yet most people assume that our roads would be overflowing with drunk drivers if we relaxed or eliminated our drunk driving laws. Are huge packs of drunk drivers that much more realistic than huge packs of monster-dogs? Are there statistics backing that up?