Chandler Criminal Defense

Article 2, Section 22 of the Arizona Constitution says that “[a]ll persons charged with crime shall be bailable by sufficient sureties, except . . . [f]or felony offenses committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge.”

Knowing that, what do you say when you know your client’s new offense was allegedly committed while he was out on bond for another felony offense and the judge asks, “counsel, do you have any recommendations regarding bond?” Does it matter if the same judge is assigned to the client’s other case and presumably knows that the client was out on bail when he or she supposedly committed the new offense? Does it matter if the prosecutor doing coverage, who recommends a bond amount, is the assigned prosecutor on the client’s other case and presumably knows the client was out on bail when he or she supposedly committed the new offense?

In a situation like that, everyone but you is operating under some kind of false assumption. It’s not uncommon. In fact, I encountered a few situations like that last week (hence the post). They either don’t remember your client was on release, or they don’t know about Article 2, Section 22. Regardless, you know they’re wrong. You’ve probably told your client he isn’t entitled to bond, and when the judge asked you for a bond amount, the client was probably grinning from ear to ear thinking it was his lucky day.

In a situation like that, the State Bar of Arizona would probably direct you to Ethics Rule 3.3, Candor Toward the Tribunal. Here it is:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Sure, it’s an important rule, but does it really apply? The constitution is legal authority, but is it directly adverse to the position of your client? Your client wants bond, obviously, but his position was that he couldn’t get it. The judge and the state are the ones who hold the position which is contrary to legal authority. Also, is arguing for bond a false statement of fact or law? Doesn’t the rule seem to only require you correct a false statement of material fact or law that you previously made to the tribunal?

Some of these questions are answered to some degree by ethics opinions, but I don’t think the answer is clear. How big of a factor is the way the judge words the question? Does merely asking for recommendations regarding bond give rise to a duty to tell the court your client isn’t entitled to it? What if the judge assumes the client gets bond and just asks you for an amount and a reason? What if he just asks you for an amount? Just a reason? Do you argue for the bond amount you know your client wants, or do you just throw out a number and say as little as possible? Is the way you word it going to make a difference? What if you say, “if the court is inclined to set a bond amount, X amount is appropriate for Y reasons?” Can you argue freely if you assume the court and prosecutor think proof is not evident or the presumption not great as to the present charge?

You can probably guess by now that I’m just going to ask questions here without really answering any of them. Every situation is different, so I don’t think there’s any single right answer. However, I think it’s fair to say any good criminal defense lawyer is going to keep his or her client’s interests in mind at all times while advocating for the clients within the boundaries of the ethical rules (duh). In the right situation, there are ways to argue for what your client wants.

One fascinating thing to me about what I’ve described is that I don’t recall law school professionalism ever covering a fact pattern where everyone was wrong but you. Maybe they thought learned judges and prosecutors didn’t make mistakes like that. If so, they’re wrong. Situations like the one I’ve described happen regularly. More often than most people think.

Because of that, it’s probably not a bad idea to figure out in advance how you’d react.

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.