Chandler Criminal Defense

One of the most common things I hear in initial consultations is that “attorney so-and-so said he could definitely get me X deal.” It can be a frustrating situation when the client was promised something that no defense attorney in their right mind would promise. Sometimes, it ends up being an amusing situation when the “deal” prospective clients claim they were promised really can be guaranteed.

Multiple clients have said to me that local high-volume DUI firms told them, “if you hire us for your first time regular DUI, we can get the judge to suspend all but one of the ten mandatory days of jail.” That’s true. It’s a reasonable guarantee because it’s a virtual certainty, but it’s misleading for that same reason. That result has nothing to do with the lawyer. The client could get that “deal” if he or she just pleaded to the court. That’s the likely result if the client loses at trial. I don’t think I’ve ever seen a first-time regular DUI defendant plead to the charge and not get nine days suspended. Those firms left the clients with the impression that getting them that “deal” was something special, and had the clients not gone to another attorney, they might have spent the entire representation thinking that was the case.

I honestly don’t know why lawyers would say things like that. Are they banking on the fact clients won’t talk to any other lawyers? Don’t they think the combination of misleading information, high-pressure sales tactics, and tons of clients is going to get the bar involved sooner or later? Maybe they don’t care. Maybe what they’re doing isn’t necessarily unethical if they are wording it properly (though I disagree), but it’s going to make some clients really angry. I don’t know anything about running a mega-firm, but to me, it seems like an awfully stupid business practice.

Posts here and here bring up interesting points about going straight into solo practice out of law school. While good reading, for the most part, I don’t agree with them.

Adrian and I went into solo (or is it duet?) practice straight out of law school. Throughout law school, I intended to do criminal defense and nothing else. I wanted to fight the big, bad government. My goal, which I made clear to everyone around me, was to immediately hang out a shingle upon receipt of my bar number. I set aside time to watch court. I did a public defender clinic, attended public defender new hire training, spoke with a number of judges, and met as many good criminal lawyers as I could. I bombarded every criminal lawyer and paralegal I encountered with questions and did about two years of work as a clerk and research assistant for a prominent criminal defense attorney who had his own solo practice. He led me through a number of his cases from start to finish, showing me exactly what he did and why he did it. Adrian took a fairly similar path. All but a handful of people at ASU discouraged us, but we were undeterred.

When we first started the firm, we did very little advertising (we still don’t do very much, but that’s beside the point). The attorneys we knew referred to us those clients who couldn’t afford their fees. Judges and lawyers helped us get indigent defense contracts. I never felt like I was doing anything completely on my own because there were so many highly qualified people willing to help us when we needed it. After about a month of being out on my own, one of the state’s best criminal lawyers was generous enough to sit down with me and spend over an hour discussing everything he would do if he was handling each of my cases. Experience like that was invaluable.

In the beginning, we charged next to nothing, and almost every case was a flat fee. If a client insisted on being billed hourly, we did it at a ridiculously low rate and cut out the time we spent learning things more experienced lawyers would have known already. We devoted an incredible amount of time to each of our cases. When I added up my time on some of my first misdemeanor flat fee cases, each was over a hundred hours. I was terribly inefficient, but I made sure clients never had to subsidize my learning curve. Neither of us had to lie to clients. We were completely honest about our experience, and although some clients probably didn’t hire us because of that, I doubt we would’ve been a good fit anyway.

One of the reasons we went out on our own was because we thought it would actually give us better training than any other route. I think it did. If we had worked as a prosecutor or public defender, we wouldn’t have had as much choice (if any at all) over who taught us. Instead, we went to the best lawyers we could find, the ones judges and other criminal defense lawyers recommended. They were almost always happy to help. We also wanted to control our caseload. That worked too, as we’ve never had to take more cases than we felt comfortable handling.

Most importantly, aside from occasionally covering for other defense attorneys, we only appear in court on behalf of our clients. To me, that’s a big deal. We know everything possible about them and their cases, as we represent them from beginning to end. I have the utmost respect for public defenders, but if I had gone that route, I would have likely spent a lot of time sitting in court doing coverage. I wanted clients. I wanted cases. I wanted to avoid appearing in court on behalf of people who weren’t my responsibility.

If we’d gone to work for the public defender’s office, we still would’ve represented clients more or less immediately. To some extent, we would have still had people’s lives in our hands, and they would’ve received representation from inexperienced lawyers. They aren’t any less entitled to competent representation than someone who pays. I wouldn’t have viewed theirs as training cases any more than I viewed my private clients’ cases as training cases. Every lawyer has first clients. Ours just happened to pay us.

In his post, Scott Greenfield says he expects new criminal defense lawyers to inform him that he’s wrong by insisting that they’re great. I might be a new lawyer by his standards, but I’m not going to claim I’m great or make any other self-aggrandizing, unverifiable claims. That would be meaningless, as anyone on the internet can make themselves look like Gerry Spence. I hope this post doesn’t come across as bragging or self-promoting. What I want to get across is that going straight into solo practice can provide as much training and supervision as a more traditional career path. The drawbacks Adrian and I encountered, like more liability, more expenses, more risk, longer hours, and less-than-steady pay at the outset, were things that affected us personally. They weren’t to the detriment of our clients.

Grudging soon-to-be solos who do it straight out of school because they have no other options may indeed need advice to minimize the harm when they’re unleashed on the public. However, the people who are prepared and choose to do it for good reasons are just as deserving of sage advice and support. If you make competence top priority and lay the proper groundwork, there’s no reason not to go right into solo practice criminal defense.

Some Arizona prosecuting agencies charge defense attorneys for copies of police reports and other discovery. For instance, the Maricopa County Attorney’s Office charges $0.25 per page. They have you sign an invoice when you pick up the discovery, then they send you a bill. Most Maricopa County defense attorneys I know have at least one delinquent discovery bill from the county attorney sitting around their office. There’s not much point in writing a check for a dollar or two. A friend of mine told me about a defense attorney who was 90 days delinquent on a bill for $1.50 and wanted to go to the county attorney with $0.55 and ask to be put on a payment plan for the remainder.

I don’t like the county attorney’s policy, but it isn’t the worst. Not by a long shot. My vote is for the City of Mesa Prosecutor’s Office, which charges $5.00 for its mandatory, automatic disclosure pursuant Rule 15.1 of the Arizona Rules of Criminal Procedure. Rule 15.1 lists a lot of discovery that a prosecutor “shall make available” to a defendant. The list isn’t short, and it includes the police reports. Because Mesa Municipal is a misdemeanor jurisdiction, pretty much everything is due by the first pretrial conference.

When you show up at your first pretrial in Mesa, the prosecutors will let you look at the disclosure, including the police reports, but they won’t let you take it, copy it, and return it. Is that really making it available? You can beg and plead, but they’re going to insist on getting $5.00 before you can have a copy of your own. The policies written on the office’s discovery notice itself confirm that the only way to get a copy is to pay up. The notice also explains that they charge an additional $0.10 per page for other mandatory disclosure items like police reports for sentence aggravation, HGN and DRE logs and manuals, FST manuals, alco-sensor logs, and Intoxilyzer calibration logs and manuals. They exhibit a characteristic lack of humor when you try to opt for $0.10 per page for the initial disclosure instead of the flat fee of $5.00. I think they don’t like counting pages.

By requiring that defendants pay them for copies, the city prosecutor is pretty clearly violating the plain language of Rule 15.1. I can’t see how their policy could possibly be permissible under a rule that says “shall make available.” Is it okay because they’re only charging $5.00? Would it still be “available” if they charged $500.00? How much would they have to charge before it becomes a problem? What if they didn’t give out copies, but just let defense lawyers read the report and take notes? The rule used to say “for examination and reproduction” in relevant part, which would have made Mesa’s conduct even more outrageous (and they did it back then too), but I can’t find any legislative history suggesting the change was intended to allow prosecutors to limit the scope of availability. How can they possibly read the rule to require anything other than what they refuse to do?

Additionally, it seems obvious to me that city prosecutors are violating the Article 2, Section 24 of the Arizona Constitution. The Arizona Consitution provides a guarantee against being compelled to advance money or fees to secure constitutional rights, and Arizonans have a constitutional right to a copy of the nature and cause of the accusation against them. I think the word “copy” implies a reproduction of something in writing. The words “cause of the accusation” mean something more than just the broad language of the indictment, right? I read the consitution as giving defendants a constitutional right to a copy of the police report. They therefore have a constitutional right not to be compelled to pay for it. Do any of you disagree? Again, how can the City of Mesa possibly think that what they’re doing is acceptable?

Unfortunately, I suspect the city doesn’t care if what it’s doing is okay because it doesn’t have to care. Defense attorneys have been filing motions arguing these points for years. I’ve seen a motion as old as 2002. Who’s going to appeal over a $5.00 discovery fee? Maybe a judge will occasionally grant a defendant’s motion by compelling a prosecutor to provide the report free of charge, but I seriously doubt a judge is going to dismiss the case. Is saving $5.00 worth the lawyer’s time? Certainly not if the lawyer is being paid by the hour. If one defendant wins one case, who’s going to stop the prosecutors from violating the rule in every other case? The court isn’t going to issue some kind of standing order. The city’s discovery fee probably brings in a decent amount of money each year. Who cares about one tiny little profitable, illegal policy?

In criminal defense, the state often doesn’t have to follow the rules when enforcing them. The law is what judges say it is. In Mesa, I’m guessing that the prosecutors either don’t care what the judges say and the judges look the other way, or the judges just ignore the rules altogether. I think both situations are equally plausible. In fact, years of a terrible policy suggest to me that the one of those options is almost certainly the case. It doesn’t leave me with a good feeling.

I practice in a number of different courts throughout Arizona. Although I focus on felonies, which means I’m usually in superior court, I handle enough misdemeanors to regularly visit some of the state’s smaller municipal and justice of the peace courts. Sometimes it can be an amusing experience.

Recently, I had to do a hearing in a very small municipal court which had just moved locations. As I pulled up to the new court building, I thought I was in the wrong place. I would describe the court as being in a strip mall. At best, it could be called a professional complex. Regardless, you could have put a Quiznos next to the court and it would’ve fit right in.

I walked up to the court and saw it was identified only by a piece of white printer paper taped to the window. I knew I was in for a treat. I entered and walked to what they told me was the main courtroom. Everything in the facility seemed to be marked only with white printer paper taped to doors and windows, and the main courtroom was a medium-sized conference room with a number of stacking chairs set up in the middle. They all faced the front of the court, where the judge sat at the middle of a long table. There were people seated to his left and right. The court must have been having a food drive, as there were canned goods and boxes of mac and cheese stacked everywhere. Most of the chairs were filled with defendants waiting for their hearings, and a few people were just randomly standing around. In the back of the courtroom was a law enforcement officer seated at a folding table.

I handed my client’s plea agreement to the clerk and took a seat. Shortly after I sat down, an attorney walked in. The judge immediately recognized him, and the two had a very jovial conversation in front of everyone. In a mix of Spanish and English, they loudly discussed how they’d been and the state of their respective careers. I vaguely recall the discussion included mention of a fishing trip and the size of a trout one of them caught. The judge immediately called that lawyer’s case.

When the judge got around to my client’s case, my client and I went to the podium, which couldn’t have been more than a few feet from the judge. We went through with the change of plea, and after the judge imposed sentence, he directed us to go to the bailiff. I asked where the bailiff was, and the judge pointed to his right. My client and I took a couple of steps and stood in front of the bailiff, still just a few feet from the judge. The bailiff had my client fill out some paperwork. It was tough to hear what she was saying because we were so close to the judge, who was doing another change of plea. I think she might have even asked him to be quiet for a second so we could finish up.

Once my client signed everything, the bailiff picked up a walkie-talkie and said something to the effect of “psst, Jodie, you ready for this guy?” I’m just guessing at names, as I’m a little fuzzy on the details, but you get the point. I heard what the bailiff was saying come through on the walkie-talkie of the lady on the other side of the judge. She was about six feet away. After shuffling around some papers, Jodie said “psst, sure, send him on over.” I could hear it as well directly from her mouth as I could from the bailiff’s walkie-talkie. The bailiff responded, “psst, okay.” My client and I took a few steps to our right, awkwardly passing in front of the judge, who was still in the middle of the change of plea. The bailiff passed the paperwork to the judge, who passed it on to Jodie.

We stood in front of Jodie, where it was still difficult to hear over the judge. Jodie filled in a couple of blanks and handed the paperwork back to my client. She picked up her walkie-talkie and said “psst, they’re ready for you Jim.” There was no response, so Jodie told us to have a seat. For the next few minutes, she tried to get Jim multiple times on the walkie-talkie without success. Eventually, she tried and I could hear her echo on the walkie-talkie of the officer who was seated at the table in the back. I guess he forgot to turn his on earlier. Jim responded “psst, yeah, you can send them back.” Again, you could hear him speaking louder than you could hear him on Jodie’s walkie-talkie. I got up and started to head toward Jim, but Jodie motioned for me to approach. I went up to her, and she said “Jim’s in the back.” She motioned to Jim, who waved. “He’ll take care of you from now on.” Uh, thanks.

We walked to the back of the room and had a seat at the folding table, where Jim went over the details of probation and the payment of fines with my client. Sitting there, I watched the court continue to operate in the same manner. Every defendant scooted over from the judge to the bailiff after his or her hearing. The bailiff contacted Jodie via walkie-talkie after she was finished. Every set of papers got passed down the line, with the judge as the middle man. The defendant then had to walk in front of the judge, who was invariably in the middle of the next case, to speak with Jodie. Jodie then walkie-talkie’d Jim, who told them he was busy. Jodie had to be able to see Jim. She had waved to him. We saw him when when we were talking to her. We could see her.

I left assuming that the setup was temporary, but part of me hoped it wasn’t. I felt like I was in a scene from South Park, and I couldn’t help but wonder if they bought the walkie-talkies just for that purpose. Someone deserves an award for that idea. I’m thinking about swinging by sometime just to watch court again. If only I had the time.

There’s been a good bit of news lately about Myrtle Beach trying to rid itself of bikers. I expected to hear a lot about it from bikers (here’s an account from a biker who engaged in a bit of civil disobedience), but I was pleasantly surprised to see at least one member of the blawgosphere pick up on the story as well (check out posts from Bobby G. Frederick here and here). Anyone who knows me or has had a look around my firm’s website realizes that both Adrian and I are avid bikers. I donate a lot of my time to fellow bikers and bikers’ rights organizations, so this Myrtle Beach business is right up my alley. Strangely, I don’t know what I’d recommend.

On one hand, I can understand why bikers might want to take a “screw ‘em, we just won’t go” approach. I imagine that will cost Myrtle Beach quite a bit of money. Sure, the powers-that-be can increase taxes or figure out some other way to bleed enough money from their constituents to scrape by, but the people who’ll end up having to pay those taxes won’t have as much cash as they used to. There will be plenty of hotel, restaurant, and bar owners who will start hurting. I wouldn’t be surprised if a few tourist shops go under. On top of that, if bikers really stay away, there won’t be any ticket revenue. I think Myrtle Beach will miss the bikers sooner or later. There’s something very satisfying to me about the idea of sticking it to the city that way.

On the other hand, if bikers want to take a stand and really get their message across, an act of large scale civil disobedience is hard to beat. Bikers who just ride through town sans helmet and later pay the ticket might as well not bother. They’d be helping the city. Fighting the ticket is what matters. If hundreds or maybe thousands of bikers get ticketed for not having helmets and every single one of them fights their ticket, what would happen to Myrtle Beach’s court system? The only reason civil traffic infractions generate a lot of profit is because most people roll over. It wouldn’t take that many bikers fighting their tickets to give the Myrtle Beach courts more than they could possibly handle. Most if not all of the bikers will lose, but hearings take time and cost money. The courts could try to cut corners, but I just don’t think it’s possible to cut enough corners to make a government traffic-ticket scam work when everyone’s contesting their infractions.

I think both options are entirely possible, as bikers are ridiculously organized. It may take ten of us an hour to gas up on a poker run, but thousands of us will jump all over a rights issue in a matter of seconds. Try writing something online criticizing bikers and see how long it takes you to get a response. I’ve never seen an online poll go in favor of helmets. On issues with only one pro-biker option, we mobilize quickly. It’s different when the best course of action for bikers isn’t clear. From what I’ve seen, there’s no single voice to be heard about Myrtle Beach. Rights groups have definitely taken up the cause, but they’d be a lot more effective if they acted as one. I hope that happens.

For what it’s worth, my advice to the bikers who are organizing the resistance is to crunch the numbers and base the decision on what’s most realistic. How many tickets would we need to fight to clog the courts? How many bikers can we realistically expect to participate in large scale civil disobedience? How much revenue will Myrtle Beach lose if bikers disappear? How much can Myrtle Beach afford to lose?

Personally, I’m hoping bikers as a group pick civil disobedience. I’ve been meaning to take a ride to South Carolina.

A lot of people have been writing about peremptory challenges lately. You can read some interesting posts here and here. In Arizona, the parties each get six peremptory challenges in felony cases not punishable by death. It’s not always easy getting a juror struck for cause, so those six “free” strikes usually feel like far too few. The problem is that most people think they can be fair even when they really can’t be. Who’s willing to admit to a room of strangers that they can’t possibly be fair and impartial?

Recently, I learned that when drinking and driving might be involved, the answer is “almost everyone.” I had a trial a couple months ago where there was evidence my client drank alcohol prior to driving, and his young daughters were in the car with him. My client was not charged with DUI because he had no signs of impairment and blew under the legal limit when given a breath test. Before trial, I filed a motion in limine to preclude any mention of the fact he’d been drinking. I argued his drinking was not relevant to the actual charge and that, even if it was, it’s prejudicial effect substantially outweighed its probative value. The judge denied my motion but let me ask prospective jurors all kinds of questions about their views on DUI.

What I heard from the prospective jurors in voir dire suprised even me. A lot of jurors thought we should have zero tolerance for any drinking prior to driving. Many of them said they simply couldn’t be fair to someone who had something to drink prior to driving. They seemed to wear their inability to be fair and impartial as a badge of honor. I felt like the panel bonded over their hatred of even the slightest bit of pre-driving alcohol consumption, and the jurors seemed to be pushing each other in some kind of competition to see who could be the most intolerant. I’ve never gotten so many jurors struck so quickly and so easily. I don’t think the judge was able to rehabilitate a single juror.

That experience left me wondering a few things. Is it normally tougher to get jurors struck for cause because people don’t have similarly powerful prejudices in other areas, or because they just don’t feel comfortable expressing their other prejudices? Is there any other area where people are so willing to admit they can’t be fair and impartial? Did the jurors really feel so strongly about drinking and driving, or were they just giving into social pressure? I’ll probably never know the answer to some of those questions, but at least it’s something interesting to consider.

In this post, Scott Greenfield at Simple Justice talks about how zealous advocacy will no longer be necessary in New York starting on April 1, 2009. Arizona attorneys haven’t had to zealously advocate for their clients for years. However, most criminal defense attorneys still promise in their fee agreements that they will zealously represent their clients, and there are still quite a few zealous advocates out there. I doubt that changing the language of our ethics rules had much of an effect.

Interestingly, at least one Justice on the Supreme Court of Arizona disagrees. Every Arizona attorney is required to take a professionalism course. When I took the course, we watched a video of Chief Justice Ruth McGregor talking about the need to increase civility in the practice of law. I recall being confused when she said something to the effect that removing zeal from the rules was a huge step in the right direction. I got the impression that she felt it made a big difference. Can’t an attorney be a zealous advocate while remaining civil? Can removing one little word make such a big difference? How many attorneys really changed the way they represent clients based on that change?

If Justice McGregor is right, I’m worried. How did attorneys eliminate zeal from their representation? Have clients been forced to accept a lesser degree of representation? I’m concerned that may be what the Supreme Court really wanted. If civility was all they cared about, they could have just amended the rule to say “[a] lawyer shall provide zealous representation to a client while remaining civil at all times.” I hope I’m right and that clients haven’t been made to suffer in order to promote civility.