Chandler Criminal Defense

I had a sentencing yesterday morning, and I arrived early because I hoped the court would call my client’s case first. The commissioner hearing the case usually likes to start with a group advisement of rights for all the defendants (if they’re all informed of their rights in advance, a judge can save some time because he won’t have to individually tell them what they’re giving up if they choose to enter a plea), but sometimes he’ll do a sentencing or two first if the attorneys get there early enough.

While I was waiting for court to start, I had an interesting conversation with the bailiff. She said the morning calendar consisted of 14 sentencings and 90 pretrials. As I sat there, I thought about what those numbers meant. I thought about how one person (who showed up almost half an hour late) was going to impose sentence on 14 different human beings in just a few hours. For many of those people, it was likely the most important morning of their life. A lot of them would find out when they’d next see their family. They might be ordered to start programs or pay fines that would have a huge impact on their life for years to come. Some of them might finally be able to put their past mistakes behind them and receive some semblance of closure.

Based on the comments he made at my client’s sentencing, I’m fairly certain the commissioner gave my client’s case a cursory review at best. He seemed only vaguely familiar with the contents of the presentence report, and when I spoke on my client’s behalf, he looked impatient. The same was true when my client spoke. The commissioner appeared to be multitasking signing orders for other cases. My client’s case clearly wasn’t his top priority, but it mattered a lot to my client. It mattered a lot to me. Having appeared in front of that commissioner before, my impression of him is that he’s fair and intelligent. However, he had very little control over the circumstances yesterday morning. He had a lot to do and not enough time to do it.

My client’s case involved a stipulation to unsupervised probation for an undesignated felony. The commissioner probably had sentencings with no agreements. Some of those other 103 hearings might have involved huge decisions and a lot of prison time. Although the commissioner was responsible in my client’s case for setting the length of probation, the terms of probation, and the monthly payments my client would have to make, as well as deciding whether to impose jail and whether it would automatically be designated a misdemeanor, those probably weren’t big decisions compared to ones he had to make in other cases.

When they represent the number of sentencings and pretrials on a single morning in front of a single judge, 14 and 90 are scary numbers. I think the commissioner probably would’ve made a couple of different decisions in my client’s case if he only had more time to read what was in front of him and listen to the arguments. The context of a hearing shouldn’t matter, and the biggest cases shouldn’t be the only ones getting personal attention. My client deserved more. Unfortunately, I doubt that’s possible when we’re dealing with numbers like 14 and 90.

A little while back, I overheard a defense lawyer loudly explaining to his client why a prior felony conviction could be used to enhance the client’s sentence. The client was looking at a fair amount of mandatory prison because of an old aggravated DUI and kept asking why he should receive harsher punishment because of an old conviction for which he already did time.

I think those are fair questions. In Arizona, an aggravated DUI is forever an historical prior felony conviction. Once you’ve been convicted of aggravated DUI, you will always be looking at an enhanced, mandatory prison sentence if you are later charged with pretty much any felony. That aggravated DUI conviction will follow you around for the rest of your life, resulting in worse plea offers and giving you powerful incentive to take them because of the risk of guaranteed prison. It’s something that comes as a surprise to most defendants.

I think it’s ridiculous to make any DUI a felony in the first place, but it’s even worse to give it particularly severe consequences. Other convictions that serve as eternal priors are things like dangerous crimes against children or offenses involving a deadly weapon or dangerous instrument. Adding DUI to that list is an example of anti-drunk-driving hysteria at its worst, and I can see why clients have problems understanding it. Clients often say things like “I made a mistake, it was years ago, I did my time, and these new charges have nothing to do with DUI…I can’t believe I’m looking at this much time.” Those aren’t bad points.

The lawyer I overheard, on the other hand, didn’t seem to see any problem with the situation at all. He was saying all the things a prosecutor would say. He went into great detail about why repeat offenders should get harsher punishments, trying to make points about the need to deter future misconduct and how those who violate the law on more than one occasion have a more culpable mental state and thus deserve greater penalties. Needless to say, the client didn’t care about how the law could be justified under deterrence-based or retributive theories of punishment. It sounded like a law school lecture, and all the attorney accomplished was to royally piss off his client.

If they ask, I tell clients why I believe certain laws are the way they are. However, I can’t recall ever trying to justify a law to a client. That’s not my job, and a lot of the time, I’d end up trying to justify the unjustifiable. I don’t have to convince my client that he’s being rightfully prosecuted. Many Arizona laws are terrible. Quite a few of my clients are being prosecuted for things that shouldn’t be illegal. Justifying a law to a client isn’t going to help the client, and it certainly isn’t going to do anything to improve the attorney-client relationship. I defend people, not crappy laws. I really don’t know what that lawyer was thinking.

I overheard an amusing conversation between two lawyers this morning. One of them is a public defender, and the other is a contract attorney. The public defender was complaining about clients saying this: “You just want me to take the plea because you’ll get a bonus.” (NOTE: for those of you who aren’t familiar with the criminal justice system, I’d bet money that there isn’t a public defender’s office anywhere in the nation that gives its attorneys bonuses for pleading out cases). They had a couple of pretty funny responses, but my favorite was this one: “They actually don’t give me bonuses for pleading out cases. I get a bonus for losing at trial. So, what do you want to do?” It made me laugh.

A lot of things will get your driver’s license suspended, canceled, revoked or refused here in Arizona. Not paying child support, getting too many tickets, not paying tickets, numerous things involving DUI short of an actual conviction, and convictions for various felonies and misdemeanors will all prevent you from driving.

In Arizona, it’s practically impossible to get by without driving. Public transportation is generally inadequate in urban areas, and in rural areas, it’s basically non-existent. Cabs are very expensive. Most people I know who take advantage of buses or the light rail still have to drive a few miles to get to a park and ride. My clients who can’t drive are severely limited in where they can live and work.

Not having a car leads to many of my clients getting into more trouble. Those who drive anyway often find themselves with new misdemeanor charges when they’re caught. If they’ve been drinking, what would be a misdemeanor DUI becomes a felony DUI. The jail time turns to prison time, and they have to do 120 times as much of it. Plenty of stops and searches incident to arrest that resulted in new charges would have never happened if the driver’s license hadn’t been suspended.

I’ve had clients who picked up serious drug charges after getting rides with friends who ended up having drugs in the car. I’ve also had clients who said they committed crimes because the person who gave them rides called in a favor. The most common excuse I hear for people failing to check in while on probation or missing court dates is that they couldn’t get a ride. Judges, prosecutors, and probation officers usually show no sympathy.

No one is less sympathetic than Arizona’s Supreme Court. You see, Arizona courts do not recognize driving as a right. To them, it’s a “privilege.” They claim to recognize that not driving hurts those who must drive for a living, but they seem to think that matters only for particular occupations or fields. They don’t think the potential loss of the driving privilege is a grave or serious consequence. That’s why a license suspension isn’t enough to support a right to trial by jury.

Unless the justices make a lot more than I think they do, I doubt they’re getting chauffeured everywhere in limousines. I’d love for them to go without driving for three months and say loss of license isn’t a grave or serious consequence. They’d have to tell their friends and family they aren’t allowed to drive. They’d have to walk back from the grocery store laden with bags or bother everyone they know for rides. People would have to accommodate their lack of transportation. Maybe then, things might change

Insensitivity isn’t the only problem with how Arizona courts view driving. I find the very use of the word “privilege” repulsive. It sounds as if we’re small, helpless children who should be grateful for every little scrap of autonomy the state decides to grant us.

As an American, I’m proud to have rights, not privileges. The word privilege isn’t anywhere in the Bill of Rights, and the founders declared that I am endowed with unalienable rights, not granted alienable privileges. In much of this country (and most if not all of Arizona), driving is often necessary in order to make a living, raise a family, and have a decent quality of life. I shouldn’t have to rely on big brother to give me permission to do something necessary to live my life in a normal, reasonable manner. I’m ashamed Arizona uses the word privilege in its constitution and statutes. It sends the wrong message, telling us someone has to give us our freedom.

To the government, it doesn’t matter how essential something may be to life, liberty, and the pursuit of happiness. If the government wants to regulate it, that’s what the government is going to do. In most cases, all it takes is a name change.

Relabeling and over-regulating something as important as driving frightens me. Reproduction, marriage, and plenty of other essential rights aren’t enumerated. Although it would probably love to do it, Arizona can’t relabel them privileges because courts have decided they’re important enough to be off-limits.

I’m not thankful for that because I shouldn’t be. Instead, I’m angry that I have to hope judges think something is important before I’m allowed to exercise my right to it. It’s a sad state of affairs, and I can’t think of any area where the judges more plainly and disturbingly ignore something essential to modern life than with driving.

Defense attorneys, at least the ones I know, regularly speculate about how much time we have before the criminal justice system finally collapses. The argument is never about whether it’s going to happen, but rather about when it’s going to happen. Spend enough time in court with open eyes, and you’ll wonder the same thing. The system is so broken and overflowing with cases that most of us think it can’t possibly last much longer.

Always one to embrace a little doom and gloom, instead of talking about how we might prevent the imminent collapse, I’d rather talk a little about how I think things are likely to be after it happens. Here are my predictions:

1) The Bill of Rights as we know it will be just a memory. The various state and federal constitutions are well-known havens for criminals. Get rid of the right to a jury trial, the right to confront the state’s witnesses and cross-examine them, and the right to present evidence and call witnesses. That stuff is expensive and time-consuming. Plus, most people are guilty anyway, right? On top of that, eliminate the right to remain silent and to refuse to be a witness against one’s self as well as the right against unreasonable searches and seizures. All of those things prevent the police from getting their guy. Also, take away the right to appeal and other post-conviction relief. That can take a while, and victims deserve closure, whether authorities have the right person or not. Most importantly, forget about the right to counsel, especially the right to counsel free of charge. Defense attorneys make things difficult. Even without civil rights, they’ll still somehow throw a wrench in the system. Instead of presuming people innocent until proven guilty beyond a reasonable doubt and letting them defend themselves with the help of counsel, we’ll just have the victim, the prosecutor, and judge sit down, discuss the case, and decide what’s fair.

2) We won’t legalize anything. In fact, we’ll keep enacting more laws. Why not make any DUI alcohol zero tolerance, just like we’ve done with DUI drugs? Hell, why not just give alcohol prohibition another try? Why not make speeding a felony? We aren’t going to learn from the mistakes that led to the collapse. I think we’d sooner legalize robbery or kidnapping than cocaine. Building a new system out of the rubble will take money. Solving a robbery or a kidnapping won’t make the state any money. It takes time and money to solve those crimes, and the defendant probably did it because he had no money. The state won’t have any cash to put up some shiny new courthouses and hire highly qualified ex-prosecutor judges if it wastes all of its time investigating poor people suspected of tough-to-solve crimes. With no right to privacy in one’s person or property, police will just pick someone and violate what used to be his or her constitutional rights until they find something with which they can charge them. Without the Bill of Rights, a justice system focused on victimless crimes like drug possession and traffic violations could be a cash cow. People will love it because it’ll make them feel safe.

3) It won’t be total anarchy, ever. Before the great new justice system is up and running, things will be surprisingly peaceful. Even though people won’t be getting busted for every little thing, it won’t mark the end of our country or our society. There won’t be massive riots and class warfare. Things may even be better than they are now. In some ways, that’s a bad thing. If the system collapsed into absolute chaos, we’d probably learn our lesson and avoid the things that led to the collapse. Instead, people will see things are somewhat okay and try desperately to maintain that. Even though some people might see that fewer laws means less crime and more prosperity, most people will just ignore that and use the extra time they have as a result of that prosperity to come up with new, dumber laws. Being tough on everything and everyone just makes sense. If something’s bad, we must outlaw it. What if things aren’t always okay? We need laws to prevent future problems. Ignore the past failures of that line of thinking. Never mind if the result of the law is actually worse than the evil it seeks to remedy.

Well, those are my guesses. Hopefully the collapse never happens. Hopefully I’m mistaken about how we’ll react. I think I’m right though. Do any of you disagree? Do any of you have your own predictions? If they’re too long for a comment, I’ll put them up in another post. Let me know what you think.