Chandler Criminal Defense

My recent prediction was wrong, and for a moment, being wrong never felt so good. Judge Donahoe of the Maricopa County Superior Court held Deputy Stoddard of the Maricopa County Sheriff’s Office in contempt for rifling through a defense lawyer’s file in court. Here is the minute entry.

Judge Donahoe’s order was unusual though, as Deputy Stoddard wasn’t fined or sentenced to a definite jail term as a result of his contempt. It wasn’t punitive, criminal contempt. Instead, it was civil contempt. The point was to coerce Deputy Stoddard to hold a press conference and apologize to the defense lawyer. The defense lawyer must be satisfied with the apology in order for Deputy Stoddard to avoid jail.

The court’s order was strange, but that wasn’t the biggest problem. It seems Judge Donahoe forgot an important fact. In Maricopa County, you see, one man above all others gets to decide who does or does not hold a press conference. That man, Sheriff Joe, immediately spoke up and made that important fact abundantly clear. The Maricopa County Attorney’s Office confirmed that there would be no press conference, adding that Deputy Stoddard would not be going to jail.

I’ve been slow posting about this because I’m inclined to think that Sheriff Joe and the county attorney are going to win this standoff. I doubt Deputy Stoddard will have to obey the court order. As I mentioned in my previous post, the last time a superior court judge ruled against him in something this well-publicized, Sheriff Joe eventually won on special action. I’m willing to bet Judge Donahoe’s order gets reviewed by the court of appeals, and I’m willing to bet Sheriff Joe comes out on top. However, I hope I’m wrong again. I’ll be pretty disappointed if a higher court vacates the contempt order and all of this turns out to be for naught.

If Judge Donahoe’s order isn’t vacated, though, things may get interesting. Last time I checked, Judge Donahoe didn’t have officers, guns, or jails of his own. Sheriff Joe has all of those in spades. He even has a tank. Arizona’s appellate court and supreme court can’t compete either. What if the order doesn’t get vacated and the sheriff and Deputy Stoddard just ignore it? Who will make them comply? Can anyone think of any similar situation like this in the past? Has a sheriff ever blatantly refused to obey the order of a court with jurisdiction over him?

I keep imagining Sheriff Joe holding a press conference announcing that he has started fortifying Maricopa County to hold off federal or state intervention. Perhaps he’ll begin stockpiling nuclear weapons as well. Could this be the start of secession? Will Maricopa County become its own state? Its own country? If that happens, I’m formally announcing that I’m moving elsewhere.

All joking aside, I really don’t see any chance of Sheriff Joe giving in. Deputy Stoddard may not even understand why what he did was wrong, and doing it probably wasn’t his idea in the first place. I hate to say it, but Sheriff Joe may be at least partially right. Deputy Stoddard was likely just doing his job. He was violating the constitution the way he was ordered to do it, and even if he did hold a press conference and apologize, I don’t see how his apology could be sufficient. I’d almost feel bad for him, having to pretend to be sorry for following orders, doing something everyone around him thinks is no big deal or maybe even part of his job.

I’m no expert, but holding the Sheriff’s Office itself in direct criminal contempt and ordering that it pay a massive fine to the court seems like a more appropriate remedy. If Deputy Stoddard was just following orders, sanctioning him personally does very little to prevent similar misconduct in the future. I wouldn’t be surprised if he’s already become something of a hero among other deputies. Sheriff Joe may be experiencing increased popularity in his own office for standing behind one of his men.

Sticking it to the office under some kind of respondeat superior theory of liability, if that’s possible in contempt cases, might make the people of Arizona take constitutional violations a little more seriously. Of course, on the other hand, it might just mean that the judge issuing the order gets booted out when the next retention election comes along. I hope Arizona’s population isn’t that incapable of seeing things how they are.

Something has to give, and it probably isn’t going to be our steel-willed sheriff. If he really isn’t going to back down, I doubt that Judge Donahoe’s order is going to make it through appellate review. A few lawyers have told me the view this as a Marbury v. Madison situation, as if the concept of judicial review itself was in jeopardy. I think that’s an exaggeration, but the power and resolve of our courts are surely being tested to some extent.

If the courts try to call Sheriff Joe’s bluff and force Deputy Stoddard to apologize, what happens if Sheriff Joe turns out not to be bluffing? Judicial review of the actions of the executive here in Arizona probably isn’t going away, but I can see why some people think the power and willingness of the courts to enforce their orders involving the executive is at risk.

This post is a response to the multiple, thoughtful comments on my post yesterday. As I began to write, it got too long and I decided make it a different post altogether. Here are some additional thoughts on smoking bans:

I don’t think that cigars in general will be regulated out of existence; Swisher Sweets and other mass-produced, mass-marketed products aren’t going anywhere. The cigars I like though, generally made by smaller operations in unpopulated or largely undeveloped places focusing more on quality and tradition than on marketing and lobbying, probably won’t be able to compete as the laws grow harsher. They will be the ones regulated to death.

I also doubt that the government will declare any kind of official tobacco prohibition in the near future. I’ve read a fair amount, and the new enactments aren’t that outrageous or awful in the grand scheme of things. That’s why they’re so scary to me. Like in many other areas, the government will slowly whittle away at what is and isn’t allowed until we can’t smoke anything decent at all.

The time of blanket prohibitions, at least by name, is over. The encroachments by those we elect to govern us will be gradual and timed to match our ever-changing societal norms. They’ll be properly labeled to command mass-support. Our rulers are sophisticated enough to know that excessively broad strokes usually don’t paint a pretty picture. Tiny usurpations over a long period of time slowly acclimating us to their plan will get better results.

Personally, I think that banning smoking on sidewalks and in public places makes more sense than banning it in bars, but I dislike both bans. Every time they outlaw something I don’t do, they get one step closer to banning something I do. Cigarette smoke gives me a headache, but I’m never going to support limiting cigarette smokers’ right to smoke in public or private locations because something I like is probably going to be the next thing appearing in their sights.

I’d like to say that I hope for middle ground, but what I tend to see in government is a constant struggle for middle ground where the state advances 100% each time and we retreat 50% each time. Starting with 100% liberty, it won’t take many “compromises” before we end up with a very tiny fraction or a percent of liberty left. I can’t say for sure if it’s intentional or not, as government is usually incompetent beyond belief, but the state just keeps taking. It goes too far.

Why not just make it illegal to allow smoking in places not containing the word “smoking” in the title? Even better, why not just require that they put a sign saying “smoking establishment” on the door? Let people choose where they go.

Smoking bans prevent places that should clearly be smoking establishments from functioning. I remember one of my favorite bars in Boston going through hard times after Boston’s smoking ban came into effect because it didn’t fit the special tobacco and alcohol sales requirements in the law. It was a cigar bar. I think it went out of business altogether.

Do you really want to shut a cigar bar down because their food and alcohol sales start exceeding their cigar sales too much? Should people’s livelihoods depend on whether customers’ preferences conform to the law? What if they start making a mean appetizer or two? Should they go out of business because people start enjoying their food more than their smokes? What if their cigar revenues allow them to stock the best selection of bourbon or scotch in the area and liquor sales skyrocket?

Arizona’s ban isn’t a local law. I don’t think most future laws are going to be local laws. Once the state or the federal governments realize they can do something, they generally don’t stop doing it.

My biggest concern arises from the fact that private, indoor establishments in Arizona now can’t allow smoking and drinking except in certain circumstances.

When I walk down my street to get the mail, I smell all kinds of backyard barbecues and indoor dinners cooking. I’m willing to bet someone in my neighborhood occasionally catches a whiff of my smoke when I’m enjoying a cigar in my own backyard. I don’t live in the middle of nowhere, and while I have a block fence and some distance separating me from my neighbors, they aren’t that far away.

If the government has already forbidden bars geared towards smokers from allowing smoking when doing so in those establishments in no way affects anyone other than those voluntarily choosing to spend their time inside, what’s stopping them from banning me smoking my cigar in my own backyard when some poor innocent bystander might happen to smell it?

Given my predilection for the occasional stogie, I’ve considered writing something like this for quite some time. Although the The Stogie Guys beat me to it, strangely, I’m inspired to post something along similar lines.

The weather in the Phoenix area right now lends itself perfectly to an evening cigar. I can think of few greater pleasures in life than sitting on my back porch with good company and savoring a delicious, handmade cigar. I’ve had a few nights like that these past few weeks. For an hour or two, I’ve had no place else to be and nothing else to do. Who could have wanted more? Although it isn’t a common indulgence, my life is far richer because of nights like those.

I admire what a cigar is capable of doing. The cigars I smoked cost me only a few dollars, and they guaranteed my attention for an extended period of time. They provided me not only with the sensation of smoking, which is itself very pleasing, but with a wide array of flavors. Time literally stood still. A cigar is a commitment to do nothing unpleasant for an hour or two, and it almost never disappoints.

When I smoke, I often worry it will become far harder to do so in the future. I can’t smoke indoors any longer. I’ve found that smoking on the patio of bars and restaurants becomes more difficult with each passing year. I’ve noticed the price of my humidor mainstays has steadily risen each year since I first came to enjoy cigars. I read about the FDA beginning to regulate tobacco, and I hear about ever-rising cigar taxes. I am concerned that something purely positive in my life might soon be regulated out of existence. I generally oppose government regulation of pretty much anything, but making cigar smoking more difficult seems especially nefarious. It seems more wasteful, more senseless than most other regulation.

In many respects, a fine cigar feels more like a piece of art than a consumable product. I was first introduced to cigars years ago when I was a musician and an orchestra tour took me through Cuba. Although I liked the idea of smoking cigars and had been told that the sticks I picked up were great, I didn’t have the palate to know for myself. As my tastes have developed, more than anything else, I’ve learned that I still have a lot to learn. Truly appreciating cigars, like truly appreciating any fine spirit or gourmet food item, can be a lifetime undertaking.

Cigars are a product with a long, rich tradition. Their creation is an art in and of itself, a skill often passed down from generation to generation. Cigar-making may be the kind of thing that’s capable of creating sustainable growth in third world countries, building up local economies and reviving old traditions. Fully appreciating the complexity of fine cigars can take a lifetime, and the mere act of smoking one forces someone to sit down and relax. It helps strengthen relationships and makes people communicate, drawing them away from the television so they can interact as human beings. And what does the government do? It does its best to regulate them to death.

That’s the problem with government. More accurately, it’s one of many problems with government. When the government sees there’s a plainly negative aspect to something, it attacks. Tobacco is an easy target because nobody likes cancer. Lung and heart diseases suck. By attacking something because of its well-known negative side effects, the government can instantly score an easy point with citizens who don’t appreciate the positive aspects what they’re banning.

It always saddens me to see a government ruining some of the best cultural aspects of the people it governs. I couldn’t believe it when I read that England was considering a ban on glass pints in bars. After all the progress the English Campaign for Real Ale made, would they really put up with having to pour hand-pulled ales into plastic pint glasses? Why not just require that pubs serve alcohol in Dixie cups?

While cigars may not be as much a part of US culture as cask ale is a part of English culture, cigars are something Americans do well. Some delicious cigars come from the US, and there’s no shortage of famous American cigar enthusiasts. If the anti-smoking nannies have their way, it will be a sad day not just for cigar smokers, but for society in general. Sometimes, the enjoyment of doing something is worth the risk. I wish the government could understand that.

I tried to get through my 1:00 p.m. meeting on Thursday early enough to catch some of the most recent contempt proceedings in this case. You can get additional information about what’s going on here, here, here, here, and here, but I’ll give you a single, run-on-sentence summary of what people are reporting happened: one of Maricopa County Sheriff Joe Arpaio’s goons brazenly looked through a defense attorney’s privileged and confidential file during a video-taped sentencing, committed misdemeanor theft stealing papers from the file, and had another henchman make copies before returning the stolen papers to the file, then got caught and perjured himself in subsequent contempt proceedings all the while lucking out with absurd decisions from two judges and a seemingly underwhelming show of outrage from multiple defense lawyers.

Unfortunately, I didn’t make it to the hearing. Over at Simple Justice though, Scott Greenfield explains what happened in his newest post on this topic. Here’s a post from Heat City about what happened. Apparently, a lot of other defense attorneys attended, and the matter was continued to Tuesday. The deputy claimed he pulled the pages because certain supposed keywords gave him security concerns.

So what’s going to happen on Tuesday? You probably don’t have to wait to find out. I think I can make a pretty accurate prediction right now. There will likely be an unhappy ending for anti-authoritarian people everywhere. Nobody will be held in contempt. Everyone will have wasted a lot of time, and if Sheriff Joe and his partners in crime feel like helping themselves to something in a defense attorney’s file in the future, they’ll probably see no reason why they shouldn’t give it a whirl. A deputy doesn’t just pick through a defense attorney’s file for the hell of it, and the odds of someone else being there to make copies and prosecutors all happening to notice nothing are astronomical. My money says the whole thing was planned by some high-ups, and I’m willing to bet they try it again.

So what does that mean for Maricopa County? A plain injustice has occurred and is going to go unpunished, and no one seems to be able to do anything about it. Everyone across the blawgosphere, probably across the nation, is making jokes about Maricopa County. Whose fault is it? Could a different defense attorney have changed things? What about a different judge?

Over at Criminal Defense, Brian Tannebaum explains what he’d do:

What I would have done, is to demand the judge issue a rule to show cause why the officer should not be held in contempt, allow him to obtain counsel, and have a hearing. Then I would have filed a complaint with Internal Affairs, and the state attorney’s office alleging theft, obstruction of justice, and official misconduct, with the video attached.

Here’s the problem: that’s more or less what Joanne Cuccia did do. There was a contempt hearing after the deputy had time to obtain counsel. I bet someone is filing a complaint with internal affairs, and I’m sure people are trying to get some other agency to file charges against the deputy.

The problem isn’t bad defense lawyering. There are amazing defense lawyers in the valley, and some of them are involved in the case. Defense attorneys constantly fight Sheriff Joe, and they constantly win. It’s one case at a time though. They succeed for their clients, but it’s a successful defense, not a successful offense. That’s what we need. When I hear the worst stories about Sheriff Joe from people at the receiving end of his despotism, they tend to be accompanied by the same tag line: “no one would sue him for us.” Sure, Mike Manning thoroughly spanks Sheriff Joe on a regular basis, but it usually (maybe always) involves someone who has died.

I’m only repeating what I’m told, as my practice is limited to criminal law, but I keep getting told that there are no punitive damages available in most of the suits people are likely to have against Sheriff Joe. Even though he did something wrong, there just isn’t enough money in it to make a lawyer want to take the case. In order for there to be a civil suit, it seems someone has to die or have some other quantifiable, awful thing happen to them as a result of what Sheriff Joe’s lackeys have done. He can pick through defense lawyers’ files and stalk elected officials as much as he wants, and taxpayers will only see their money wasted indirectly. Most of his violations go unpunished. If people in this state really knew cost of what he does, they’d be horrified. They won’t know about it as long as people can’t sue him and get damages for most violations.

That isn’t the only problem. For some reason, judges appear to be scared of holding Sheriff Joe accountable. The Attorney General and every other conflict prosecuting agency seem complete unwilling to challenge him. Those problems all stem from one big problem: Sheriff Joe is incredibly popular. He’s so popular he can tell the DOJ to go screw themselves. Who’s going to stop him here? Sheriff Joe’s antics are even popular among clients of mine whose rights have been trampled by his storm troopers. People like him because he usually messes with someone else. He feeds on the worst in people and knows that being bad to a certain person or group tends to make everybody else feel safe. If that wasn’t the case, he wouldn’t be so successful. If people don’t wake up, expect him to be governor. Sooner or later, he may be your dictator too.

We also need to realize that what he’s doing isn’t funny. That’s one of his best weapons. When a goofy-looking, fresh-faced deputy pours over defense counsel’s files, it looks funny to most people. Making prisoners wear pink and showing them the Food Network while feeding them rancid meat amuses the average citizen. He seems to know what people will and will not tolerate. If people aren’t okay with what he wants to do now, he’ll just slowly desensitize them to it.

When Sheriff Joe realizes he can hit someone with everything he’s got, he doesn’t hold back. Sheriff’s deputies go so far as to stalk the presiding criminal judge. When she calls him out, Sheriff Joe puts out a press release attacking her, making demands, and hinting at some kind of forthcoming judicial ethics complaint against her and two other judges. One of those two other judges is Gary Donahoe, the judge who heard the contempt proceeding in the recent file-stealing fiasco.

The other judge is Anna Baca. She was the judge who ruled against the sheriff in another right to counsel case then got overturned by the Court of Appeals of Arizona, Division One, when the sheriff appealed. Another over-the-top press release from Sheriff Joe mocked her. The language of the Court of Appeals even feels a bit pejorative, stressing how Judge Baca exceeded her authority and how relief granted by the judiciary “should be narrowly tailored so as not to unnecessarily infringe on the Sheriff’s authority.” Reading the opinion, I get the feeling Sheriff Joe’s super-powers are highly regarded by the judges on the panel.

I doubt I need to mention what he does to defense lawyers, and he attacks other politicians too. Look at how he keeps arresting Don Stapley even though no ethical prosecutor in his or her right mind is willing to charge him with anything. More than anything, don’t think about running against him. Do you really think Sheriff Joe didn’t have something to do with this smear campaign? Those are some of the most incredible allegations I’ve ever heard in a slimy political ad. Ever misled a government agency about allegations of rape? Ever been investigated for exposing yourself to a child? Ever masturbated on county time? I doubt poor Dan Saban did either, but that didn’t stop that video from being created and aired.

Sheriff Joe has managed to put himself in an amazing position. His victims have no way of holding him accountable for his more common rights violations, people love him because what he does is over the top and happens to someone else, and when he picks a target, there’s no limit on how far he’s willing to go.

To rid ourselves of Sheriff Joe, the public must understand the real consequences of what he’s doing. They must realize he’ll soon come for them too. When such a pervasive reign of terror goes on for so long, how do you convince people that their supposed savior is actually the source of their problems? People must realize that what he’s doing isn’t funny. We must give people who have been wronged by him some way to fight back.

Thinking about all of this, I almost wish it was something in the water. That’s probably an easier problem to fix.

After this post generated a deluge of negative comments attacking me and protesting the case against David DeCosta, I responded with this post. That didn’t help matters, and the angry comments continued. Scott Greenfield at Simple Justice chimed in here, and Jeff Gamso at Gamso – For the Defense discussed the situation in this post.

As the battle raged on with comments and emails of widely varying civility and rationality, I began reviewing the police reports in DeCosta’s case. Initially, I dreaded the idea of going over them. I was expecting to find overwhelming evidence of DeCosta’s guilt. After all, almost everyone who was asserting his innocence did so by criticizing me. People who try to make their case by personally attacking their opponent usually don’t have much of a case. As far as the case for DeCosta’s innocence goes, it turned out to be the exception to the rule. Here’s my summary of the reports:

Officers got to know Jesse Alejandro’s girlfriend, Emilee Keen, while working in an undercover capacity. With Keen’s help, an undercover officer hid drugs in the binder portion at the top of a legal pad. The plan was for Keen to give the pad and other supplies to DeCosta at Alejandro’s next court appearance. DeCosta would then give the pad to Alejandro. It looks like the whole incident started at the direction of law enforcement.

Officers thought DeCosta might have been aware of the plan because they heard Alejandro and his girlfriend mention his name a few times during jail calls. Apparently, they said DeCosta previously passed a list of names to Keen. They also discussed paying DeCosta, and Keen complained about getting inappropriate text messages from him. I couldn’t find any direct evidence showing DeCosta had any idea about their plan.

In court, things went more or less as planned. Keen gave DeCosta the supplies, and DeCosta handed them to the detention officer. You heard me right; he didn’t even give them to Alejandro. DeCosta handed them over to a deputy with the Maricopa County Sheriff’s Office, who inspected the pad and found what Keen and the undercover officer had hidden inside.

Officers detained DeCosta, who adamantly denied knowing there were drugs hidden in the pad. DeCosta talked about his fee. He admitted to flirting with Keen and said Keen told him they would “hook up.” He also admitted to having sex with an escort he met through Keen, but said it was not in exchange for money or legal services.

Back at the police department, DeCosta showed officers the text messages he exchanged with Keen. In them, Keen first tells DeCosta she has supplies to give to Alejandro. DeCosta was there that morning to file a substitution of counsel and had never previously appeared on Alejandro’s behalf. In the text messages, Keen insisted she’d previously gotten supplies to Alejandro every time he went to court.

Believe it or not, that’s it. Before I discuss the implications, though, I want to offer the following disclaimer: I have no clue if any of that is true. The news may not be reliable, but neither are police reports. A lot of the police reports I read fall somewhere between the Weekly World News and The Onion as far as reliability goes. If you are upset that I’m offering commentary based on facts that may or may not be true, please don’t bother telling me.

The implications of the case against DeCosta are indeed disturbing. The message I get from the police reports is clear: violate our policies and we’ll make an example out of you. Police seemed to interrogate DeCosta ad nauseum about the fact he knew legal supplies were supposed to come from him and not an inmate’s family or friends. The general impression I get is that the sheriff’s department needed a scapegoat from the defense bar to make its point.

Why did they choose DeCosta? Did they find out about his indiscretions and figure he was the ideal guy to set up? Was it all about him from the beginning? Have they tried this before with other attorneys? I have no clue, but I wouldn’t be surprised. There’s a lot of tension between the sheriff and defense attorneys here. Have a look at this recent fiasco, for instance. Attorneys have fought the sheriff on jail hours, jail conditions, and a number of other issues. Maybe Sheriff Joe wanted to let us know he can fight back.

Reading the reports, I wonder how many things I’ve done that could have landed me in DeCosta’s position. Serving as advisory counsel, I given at least one pro se client a whole bundle of legal supplies. They may not have come from the client’s friends or family, but I certainly couldn’t provide a complete chain of custody for them. I don’t desperately clutch my briefcase at all times. When I address the court, it often sits in the back of the well surrounded by other attorneys, a few feet from the gallery. It wouldn’t be too hard for someone to plant something or switch a legal pad.

I wonder how many other policy violations the sheriff could turn into a criminal offense when the wrong defense attorney commits them. I doubt I know even a tiny fraction of the sheriff’s policies, and they seem to change constantly. Sometimes jail security is incredibly tight. Other times, I’ll be in the visitation room waiting to see a client while the defense lawyer next to me chats on his cell phone. It’s tough to know what you can and can’t do. If they have some dirt on someone, why not set them up to violate a policy then bust them big time? It’s a hell of a way to make a point.

It’s easy to blame DeCosta for this mess because he spoke to the police, and I admit that I felt like I was watching a horror movie as I went through the reports. “No! Don’t go in there! Don’t talk to them!” It’s easy to look back and see how much trouble he was in and how much worse he made it, but he probably had no clue. His willingness to talk to the police could well be because he is in fact innocent. He probably did the same thing many of my clients do; in seeking to make the interrogating officer believe him, he confessed to every bad but non-criminal thing he’d done. In DeCosta’s case, those things just happened to give the police enough to arrest him. I’m fairly confident he’d have never been charged if he just said “I had no idea there were drugs in there, and I refuse to answer any more questions.”

Finally, I wonder how the assigned prosecutor feels about this case. Does he doubt it? Does he wonder if DeCosta really knew what he was doing? If the facts I’ve given you are the only ones he has, I hope he’s torn. He should be.

People who know him all seem to describe DeCosta as a good person and a fine lawyer. Aside from this whole mess, I’ve never heard a bad word about him. I sincerely hope he is vindicated in the end. I also hope that getting the facts out here puts the circus surrounding him into perspective.

I’m not going to apologize for my previous post, though I am updating it to reflect my current belief that DeCosta is not guilty of the charges against him. I have no desire to spread misinformation. I also have no intention of walking on pins and needles to avoid hurting people’s feelings when I discuss fascinating new stories. As I intend to follow some sound advice and be more circumspect when discussing current events in the future, I hope those who attacked me in the comments here and elsewhere have learned something from all of this as well.