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No Life Experience Needed

Friday, July 23rd, 2010

I sat in the hallway outside a jail visitation room trying not to listen to the conversation going on inside the room. I really didn’t want to eavesdrop. I just wanted to get in and get out. I had three more visits before the day was over and couldn’t do my visit while the room was occupied.

Inside, a probation officer was interviewing a defendant for a presentence report. He pled guilty, and she was getting information for the judge who was going to sentence him. She wasn’t very good at keeping the volume of her voice at a reasonable level and kept saying “okidokie” to the guy’s responses. She was probably in her late twenties, and she was overweight. She had a social worker look about her. Her straight red hair was pulled back in a very tight ponytail. She was wearing black capri pants (“shpants,” as my sister calls them) and a lime green tee shirt.

When she asked the defendant about his past drug use, it was apparent that she didn’t have the slightest idea about recreational drugs. She asked him if he’d ever smoked crack, and he said yes. Then, she asked him if he’d ever used cocaine. His response of “uh…yeah…I said I smoked crack” might as well have been “c’mon you moron, crack is a form of cocaine you smoke.” He was irritated at her for not knowing.

He was going to prison for a burglary charge, and he had a significant criminal history. He had an explanation for why he did what he did. He had a sad life story. She responded with lots of okidokies and very little sympathy.

At the end of the interview, she asked him a series of questions to which he was only allowed to answer yes, no, or maybe. Here are some of the ones I recall:

Would most people commit crimes if they thought they could get away with it?
Is society to blame for most crime?
Do you agree that a person should do whatever it takes to make money?
Do you feel you’ve been treated fairly?

She also asked him these two questions:

True or false: schoolteachers just like having power over students?
True of false: police officers just like having power over people?

I would have failed her test. Whatever she was seeking, I doubt I could’ve given it to her. My presentence report would’ve said I had a bad attitude, no respect for authority, or maybe something worse.

I believe most people would commit crimes if they thought they could get away with it. Look at speeding. There are laws against speeding, yet almost every single person on the freeway speeds. The government tells us speeding is dangerous. People all seem to agree that speeding puts others in jeopardy, yet everyone complains about speeding tickets when they’re caught. People think they can get away with speeding, so they do it. Believing it’s a safety issue, they put safety second to convenience. Their convenience. Other people’s safety. If people thought they could get away with more, I think they’d give it a try.

I also believe society is to blame for most crime. A lot of people have it bad. They never had a chance. It’s largely society’s fault. Most of my clients have had bad home lives, traumatic life events, and terrible mental or physical difficulties. All of my clients have at some point been mistreated, marginalized, or ignored altogether by society.

As for the third question, if money is the only thing that can assure that someone survives, whatever-it-takes might be exactly what’s in order. The guy being interviewed may have burglarized a home to feed his family. He also may have done it because he has no respect for other people and their property. Yes, no, and maybe can’t possibly answer such a complex question. The question isn’t fair.

The last yes, no, or maybe question might have been the worst. Nobody’s treated fairly in our system. The state indicts in secret. Prosecutors overcharge. Laws are too broad, and mandatory minimums are too common and too harsh. Priors long past follow people to their graves. Defendants are pushed through the system like cattle. There’s nothing fair about it.

Finally, there are a lot of schoolteachers who just like having power over students. There are a lot of police officers who just like having power over people in general. True or false can’t possibly answer either of those questions.

After the probation officer finished, she shuffled past me with a faint smile on her face. I caught a glimpse of the defendant in the visitation room. He was grizzled, with a glass eye and scars everywhere. He was rail thin and had a head of curly black hair. I looked back at the probation officer. She waited impatiently to get buzzed out of the jail hallway while fiddling with her ponytail.

The stupid questions and the stark contrast between the probation officer and the defendant made a strong impression. She shouldn’t be in a position to report on him. He’s experienced things that she can’t even fathom. I’d guarantee it.

I imagine the probation officer sitting in her office, surrounded by bric-a-brac as she types up a report about that man’s antisocial personality and escalating drug use. A judge will read what she writes and commit a fellow human being to state custody for a term of years. The judge may have struggled less in his or her life than the probation officer.

What kind of sick, twisted system do we have where the coddled get to judge those among us who’ve had real life experiences?

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Posted in Courts, Government Rants, Practice in General | 3 Comments »

No Warm Fuzzies Here

Thursday, June 24th, 2010

The work of a criminal defense lawyer is often thankless.  You can put your heart and soul into something, and at the end of the day, you may be the only human being on earth who knows what good you’ve done, what difference you’ve made. When it looks like you’ve messed up, however, it rarely escapes notice. You’ll get caught. You’ll get called on it whether it’s your fault or not. I got to experience some of the thankless nature of the job yesterday morning.

My first hearing was a change of plea. The client is already serving a prison sentence, and he has a couple of years left to go. There’s a decent constitutional issue, so I convinced the prosecutor to make him an offer to concurrent time. He’s already maxed out on felonies, so another conviction won’t enhance his sentencing range in the future. For all practical purposes, the plea is as good as a dismissal or a not guilty verdict at trial.

My only way of discussing a plea offer with a client in prison is by setting up a legal visit or legal call through the client’s “CO3,” a corrections officer assigned to him. In his case, I tried numerous times to set something up through his CO3. At first, I couldn’t get in touch with her. Then, she set up a meeting for a time she wasn’t there and forgot to tell her replacement about the visit. My file is full of entries where I tried to get in touch with her. It took forever to finally set something up.

When I spoke with my client and confirmed that he wanted the plea, it was too late to file a motion to get him transported. My prisoner clients generally hate being pulled away from their daily routine to be hauled to jail and then to court, and it’s a waste of the county’s time and money to file a motion for transport and get an order, make the sheriff go across the state to get someone, haul them back, and house them for a hearing where nothing happens. As a general rule, I don’t automatically file for transport. By the time I knew I should in that client’s case, there wasn’t enough time for the sheriff to actually carry out the order.

When I called the case in court yesterday, I had no clue that, as I had been doing my best to contact my client, he had gotten upset and written the judge a letter saying I wasn’t doing anything on his case. He complained that I didn’t care about him.

On the record, the judge told me about the letter then showed it to me. It was the first I heard of it. Suddenly, I understood why the client seemed embarrassed when I finally talked with him and explained what I had done. As of yesterday’s hearing, the client was exceedingly happy with the representation. Unfortunately, no one else in court knew that. No one knew I’d actually done my job.

In my second hearing, I had filed a motion for transport for a client. That client was being held in a different county’s jail. Although everyone told me a transport order wasn’t necessary for that type of transport, I filed it anyway because the sheriff failed to transport him to the last several hearings. Getting my client to court had been an absolute ordeal every time.

The client wanted to enter a plea, but he was initially set for a hearing on Monday in front of a judge who wouldn’t hear pleas. I filed a motion to vacate the Monday hearing and set the matter for a change of plea yesterday in front of a judge who would actually hear it. The clerk and the judges’ assistants both told me my client would be transported on Wednesday and that the judge would just vacate the Monday hearing.

When I got to the hearing yesterday, I found out that the sheriff had miraculously transported my client for Monday’s hearing then brought him back to the other county’s jail. Despite the signed transport order issued by the court, they brought my client to the wrong hearing, the one that should have been vacated. To make matters worse, someone left the motion to vacate, which supposedly had been granted, out of the court file. With the client there, me gone, and nothing in the file, the judge on Monday apparently got upset with me on the record. The minute entry from Monday ordered me personally to appear on a future date.

No one thought to tell me what had happened, so I didn’t find out about any of this until the last minute. I walked into the courthouse yesterday thinking everything was going to proceed smoothly. I’d done everything that could’ve been expected of me, everything I could have done. Anyone else, however, would look at the situations and assume I’d somehow made mistakes. Luckily, I didn’t have any other hearings that could go wrong.

Instead, I next went to visit a client. We previously had a change of release hearing, and the judge took my motion under advisement. After my irritating morning hearings, I found out the judge had issued an order reducing my client’s bond from the price of a house to the price of a motorcycle. The judge even modified his conditions to let him travel out of state for work. I walked over to the jail looking forward to being the bearer of good news.

Sadly, I didn’t get so much as a thank you. I probably would’ve gotten a happier reaction from the client had I told him it was taco salad day at the jail. He’s probably bonded out by now, but I doubt he’s even considered that I might have helped him out. Do something bad, or even something that looks bad, and you get hammered. Do some good, and you get nothing.

Strangely, I’m not bitter about yesterday. Maybe it seems like I’m complaining by talking about my morning, but that isn’t my intention. Yesterday wasn’t atypical. It looks like it won’t even be my most thankless day this week. I’m moved to write about it not because I need to whine, but because some other superficially unrelated things made me think about it in a different light.

I recently hired some clerks who are either new lawyers or law school graduates pending bar passage. Some of them request input after sending me their work. I can’t blame them, as I would probably feel the same way in their situation. I send them my finished product, the pleadings and other substantial documents based in part on their work, but they also seem to want critique. I get the feeling they want compliments mostly. They appear to want me to tell them they did a good job, not just what they should improve. I keep wondering if I ever felt the same way. I’m sure I did. How much did I seek positive feedback a few years ago? How hurt would I have been then if I had to experience a day like yesterday?

In this job, I often feel like I’m the only person who knows exactly what I’ve done. I bet I often am, and I think it’s the same for most criminals defense lawyers. As a result, I think most of us learn to derive satisfaction not from other people appreciating our work, but from knowing we did our best. It’s the best and maybe the only way to be happy and feel a sense of accomplishment in a profession where your defeats feel public and your victories feel private.

I compliment my clerks in the areas where they deserve it, but it feels strange. It feels like something that doesn’t match the nature of the profession. Am I coddling? Why should I give them something they will likely never get when they handle their own caseload? Am I giving them unrealistic expectations about how the practice of law is going to be?

The nature of the profession doesn’t seem to change much when lawyers go online.  Blogging lawyers, the ones I read at least, tend to call each other out a lot more than they pat each other on the back.  Like Mark Bennett said yesterday, “This is Not the Happysphere.” Scott Greenfield agreed. Norm Pattis might agree too, but he doesn’t seem to like it.

The online debate among lawyers can be fierce. It’s a stark contrast to me diplomatically telling someone I’m paying what I liked about their memo. Plenty of blogging lawyers rip each other to shreds for even the tiniest little tidbits of stupidity. Like in the profession itself, the defeats, not the victories, tend to dominate a lawyer’s online presence. A hundred thought-provoking posts might not get half the traffic of one badly-thought-out one. I don’t know if that’s a good thing or a bad thing. It certainly helps to prepare online lawyers for the thankless, critical environment of the legal profession.

All of this led me to think about a friend who recently got a cushy job playing with a symphony orchestra. He mentioned to me how different it felt going from the music school environment, where every concert is followed by celebration where beer and compliments flow freely, to the professional environment, where you sometimes have to quietly drive home after a concert without hearing so much as a “nice job!” The disconnect is even more notable between law school and the legal profession.

I saw more people desperately seeking validation in law school than I’ve ever seen in my life. Hands flew up in the air to answer questions first, each student making sure his or her answer showed the professor his or her stupendous intellect. People made the most ridiculous self-serving statements I’ve ever heard. For the most part, if a student fished long enough for a compliment, he or she would get one.

I have no clue whether the constant desire for input I saw in my classmates, the same thing I see in some of the people I hire, is a generational thing or not. I also have no clue whether it’s good or bad to give people the affirmation they seek. What I do know, however, is that those aren’t desires that are going to be satisfied easily in the world of criminal defense, whether online or in practice.

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Posted in Clients, Courts, Practice in General | 5 Comments »

Wasted Anger

Friday, June 18th, 2010

I keep thinking about something I saw in court a little while ago. The judge, a former sex crimes prosecutor with a temper that makes her unpopular among attorneys on both sides, decided to take a page out of Judge Judy’s playbook and dramatically castigate a defendant at sentencing.

“I’m very sorry, and I will not let it happen again,” the defendant said. The judge attacked before he could even finish, asking him why things were going be different this time. She threw his priors at him when he tried to explain. She rubbed in the fact he was on probation when it happened. She expressed her disbelief by rolling her eyes, and she made sarcastic remarks. His pleas fell on deaf ears. She beat him up, on the record and in a standing-room-only courtroom. He was mortified.

I imagine that what I saw was her version of tough love. She sentenced him leniently overall, so I think she was probably just hoping to scare him straight. I’m sure she thought her abuse, which she condescendingly heaped on this man who was a decade or more her senior, was for his own good. I wasn’t impressed.

I’ve seen her do things like that before, but I haven’t posted about it. The reason this case has stuck in my head is because of the crimes for which she was sentencing that poor man.

He was convicted of breaking into his own shed, which someone else was renting from him. The tenant quit paying and put a lock on the door. He destroyed the lock and entered without having gone through the appropriate legal channels. No one in the room, not even the prosecutor, seemed to dispute what happened.

Even worse, he was also on probation for theft of protected native plants, a class 4 felony. In Arizona, you see, it is a felony to knowingly remove or destroy any protected native plants from private or state land without the express consent of the landowner. Don’t believe me? Have a look at A.R.S. § 3-932. If the plant has a value greater than fifteen hundred dollars, it’s the same class of crime as nonresidential burglary (the charge in his other case) or aggravated assault causing temporary but substantial disfigurement. I think he dug up a cactus.

The judge wasted her anger. The guy’s a repeat offender, but look at the offenses. Didn’t she think for one second that it was ridiculous making an example out of a guy who took a cactus and tried to enter his own shed? He’s already at least a two-time felon. Although it’s for dumb reasons, employers probably don’t care. He’s going away for a relatively long time. Her scolding had no real effect.

I never like it when she goes off on defendants. At best, it plays to the worst in those who watch. It appeals to our desire to shame and ostracize others. I don’t believe for a second that it’s for their good; it’s because it makes us feel better about ourselves in some sick way.

If we lived in a place where laws and punishment had any rational relationship to morality or what offenders actually deserve, maybe there might be someplace in the courts system for something like what I saw. I still doubt it. Sadly, we don’t live in such a place.

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Posted in Arizona Statutes, Courts | 1 Comment »

"Looks Like I'm Out of Judges"

Monday, January 25th, 2010

I haven’t been blogging because of my schedule. Too much work, not enough time. The end is in sight though. Or rather, the end was in sight. I was supposed to start a six or seven day felony trial this morning, and my schedule looked pretty bearable after that.

The case is in Maricopa County Superior Court, and it’s assigned to the master calendar. I’ve complained about RCC before. The master calendar isn’t much better. Whereas RCC seems designed to make sure most lawyers appear lost at all times prior to an indictment, the master calendar seems designed to rush every case to trial after an indictment without letting the parties see the same judge twice. I haven’t figure out why anyone would want the parties to see a new judge every time, but that seems to be the goal, and the folks at the superior court are doing a bang-up job.

I was supposed to show up in front of the presiding judge at 8:00 a.m. this morning to get it set in front of a trial judge and begin trial. I was early, but the prosecutor got stuck in traffic. I got to watch some motions to continue by defense lawyers and motions to dismiss by the state. The first case or two that was actually ready for trial got assigned to a judge. A few after that got assigned to commissioners. By the time I was ready to go, the presiding judge said he was out of judges and reset the trial for tomorrow. Same place, same time.

It feels kind of nice to have some free time, but I’m a little pissed I worked so hard this weekend to make sure I was completely prepared to go today. I would’ve loved to have relaxed on Saturday morning instead of spending that time reviewing the state’s exhibits again. I’m in a trial kind of mood, and that’s a hard mood to change. I really hope trial goes tomorrow. If I get up at the same time, put on another suit, make the same commute, and show up in the same courtroom only to get my hopes dashed again, I’m not going to be happy. I do wonder, however, how long it’s going to take before my life begins feeling a little bit like Groundhog Day.

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Posted in Courts, Trial | No Comments »

Who Plans These Things?

Saturday, December 19th, 2009

Maricopa County Superior Court’s Downtown Regional Court Center, or “Downtown RCC” as they call it, may be the most irritating place in the state to handle a case. The Maricopa County regional court centers are where a lot of felony cases end up in their early stages. The cases I’ve had there are ones in which the county attorney has filed a complaint but probable cause has yet to be found for the charges by way of a grand jury indictment or preliminary hearing. When I’m at the Downtown RCC, I usually have to find out what the initial plea offer is and either affirm the preliminary hearing or request a continuance to see about getting a better offer or a dismissal.

Downtown RCC is in the basement of the central court building. When you get out of the elevator, you walk down a hallway and go to an area that looks a little bit like an airport terminal. There’s a line to check in, a help desk, and seating for defendants. I often see a private attorney or two waiting in line with the criminal defendants. I once asked the lady at the desk if I was supposed to wait in line and she couldn’t give me an answer. I never check in, but I wouldn’t be surprised if I’m supposed to. Awkwardly standing around not feeling entirely sure about what to do is a recurring theme at the Downtown RCC. I think they cultivate that.

If you want to talk with the prosecutor, you have to go to the negotiation room. To get there, private attorneys have to go stand by a locked door and wait for someone with access to open it. It’s usually a public defender who lets you in. Sometimes, it’s a sheriff’s deputy, but that will only get you through the first door. You’ll just end up stuck between two locked doors, waiting for a public defender to let you through the second. Nothing says professionalism quite like looking like a poor puppy dog stuck outside, patiently waiting for someone to let you in.

After you get past those doors, you’re in the public defender’s office. To get to the negotiation room, you need to walk past cubicles, a copying machine, and a conference table. Three right turns and you’re there. Of course, then you have to get in touch with the prosecutor. There’s a dry erase board that usually lists the prosecutors and their extensions. You have to figure out who’s assigned then give him or her a call using a phone in the negotiation room. After using the county attorney hot-line, you get to wait again.

Getting to the phone in the negotiation room is reminiscent of the opening sequence of Get Smart. Okay, maybe I’m exaggerating, but it’s definitely more complex than it needs to be. Plus, I think the negotiation room is actually directly adjacent to where where you have to wait for a public defender at the beginning. Would an extra door have been that difficult? Also, the prosecutor’s office has a little window next to where you first wait. Couldn’t they just put someone there and have them get the assigned prosecutor if you need to talk? Never mind, that makes too much sense.

In the negotiation room, you’ll probably find the police reports and a plea. The prosecutor you’ve summoned on the bat-phone is usually going to be one of a generally pleasant group of lawyers. The problem is that they have basically no discretion to do anything. Except in the rarest of circumstances, they can’t change the plea, approve that extra continuance, or dismiss a guaranteed loser of a case for the State. They’ll tell you with a smile that they can’t do a damn thing to help you. At least you’ll know who does have authority to approve your deviation request when you write it.

After accomplishing a whole bunch of nothing, you’ll probably want to communicate what’s happened to your client. If your client is in custody, the fun has just started. You get to backtrack through the cubicles and enter a hallway with little visitation booths. That’s where you get to wait looking helpless until a sheriff’s deputy gets your client for you. You’d better be patient. There’s a good chance you’ll get to wait quite a while before you can contact a deputy to get your client, and a great chance you’ll have another significant chunk of time to wait before seeing your client.

If your client only speaks Spanish and you want an interpreter, you’d better clear your schedule for a day. Okay, okay. Not really. But it seems like that. Downtown RCC experts tell me a defense lawyer’s best bet for an interpreter is waiting outside of those first two locked doors. Instead of looking like a house pet that’s been locked out, you now get to look like a zombie. For best results, approach every professional-looking person who walks by and desperately asking them if they’re an interpreter. If you get one, you begin the process described in the preceding paragraph.

I wouldn’t shed a tear if I never had another Downtown RCC case. I might like it if I was a public defender or a prosecutor (or someone who liked watching private attorneys look dumb, for that matter), but even public defenders and prosecutors seem to hate it.

Every RCC experience I have leaves me wondering who thought it would be a good idea to set it up the way it is. Anyone know? More importantly, if any of you know, do you know if they still like their idea?

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Posted in Courts, Practice in General, Prosecutors | 1 Comment »

No Constitutional Crisis Here

Wednesday, December 2nd, 2009

Maricopa County Sheriff’s Deputy Adam Stoddard violated a defendant’s constitutional rights, Superior Court Judge Gary Donahoe held him in contempt, and Stoddard is now in jail after refusing to follow the judge’s order and apologize. The way I see it, the loser here isn’t Stoddard or his boss, the ever-defiant Sheriff Joe.

I think Stoddard ends up looking good to most people. Even I’m a little impressed with the guy. He did his job, refused to apologize for doing what he was trained to do, then took one for the team and followed the judge’s order. I tend to have serious problems with blindly following authority, but I can definitely appreciate how far Stoddard is willing to go to do what he perceives to be his duty. If this mess had been caused by him standing up for rights, not against rights, I’d probably admire him. I was at the press conference where he refused to apologize, and although I doubt he actually wrote the statement he read, he seemed sincere. He may be doing his time in the “Mesa Hilton,” but he almost comes off as being the victim in all of this.

Sheriff Joe also ends up looking pretty good. We’ll never know, but I think Stoddard never would’ve been jailed if he hadn’t gone in on his own. I think the sheriff would’ve been happy letting Stoddard go to work at the superior court, knowing he had been ordered to do jail time. Sheriff Joe appears to have stood behind his man, and he let the courts know he doesn’t feel obligated to obey their orders. His defiance also makes quite the one-two punch when taken in conjunction with the fact he and his buddy, County Attorney Andrew Thomas, just slapped Judge Donahoe and everyone else who ever looked at him funny with a federal racketeering lawsuit. Read more about that here.

When this started, Stoddard and Sheriff Joe probably seemed like the bad guys to most people. They were the bad guys; Stoddard violated a criminal defendant’s fundamental rights in a blatant and outrageous manner, and it clearly wasn’t an accident. Does anyone doubt that important people in the office played a major part in what Stoddard did? Is anyone doubting that what Stoddard did was wrong? Considering that, how did the sheriff and his man go from bad guy to good guy?

There’s a lot of blame to spread around. Judge Donahoe should have held Stoddard in direct criminal contempt instead of indirect civil contempt. Punishing Stoddard and not the sheriff’s office was an even worse idea, as it gave the sheriff the ability to talk the talk while leaving the tough stuff to Stoddard. I stand by my first suggestion: holding the sheriff’s office itself in direct criminal contempt and punishing it with a huge fine would’ve been the smartest thing to do. Order that the fine be paid to the court and be set aside to put on court-sponsored training for sheriff’s deputies on the meaning of the Bill of Rights. Publicly making Stoddard into the obedient soldier and Sheriff Joe into the tough commander isn’t the way to teach either of them a lesson.

Contempt proceedings aside, dismissing the case against Antonio Lozano would have sent the clearest message to overzealous officers in the future. In fact, if Lozano’s case isn’t dismissed, I may lose a little bit of respect for the judiciary. Ordering an apology is a cute way of dealing with a violation of a criminal defendant’s less popular constitutional rights, but it isn’t sufficient. I bet plenty of courts would love to replace the exclusionary rule with a policy of forcing apologies from rights-violating officers, but they haven’t. If the court didn’t believe Lozano’s rights were violated, it wouldn’t have held Stoddard in contempt. Courts always say they value the right to counsel very highly. This would give one court a great opportunity to put its money where its mouth is. Dismiss the case against Lozano.

The fact Lozano seems to have fallen by the wayside may be one of the real tragedies here. How did Joanne Cuccia’s reputation suddenly become the victim? That file is not really hers, it’s Lozano’s. It was his name in the caption, not hers. If copying those documents hurt his defense, he’d be the one bearing the brunt of it. I keep hearing that the sheriff’s office issued a press release lumping Cuccia together with Jason Keller and David DeCosta, but I haven’t seen it. If true, that’s outrageous. However, it’s nothing compared to the potential effect of Stoddard’s actions on Lozano. A lawyer’s reputation and a defendant’s freedom carry vastly different weight in my book. Given what Lozano may have had at stake, why is he playing second fiddle to his lawyer in all of this?

We’ve probably got a long way to go before this is over. Personally, I’m awfully curious about how long Stoddard is going to have to spend in jail before something happens. I keep checking the website for the Court of Appeals, Division One, but I haven’t seen a special action come up in this case. Why is the county attorney waiting? Perhaps more importantly, why is a county attorney still representing Stoddard in the first place? At Stoddard’s press conference, deputy county attorney Tom Liddy was very clear about the fact he represented Stoddard, not the sheriff. How does that work? I can see plenty of potential conflicts of interest just reading the various news stories on this. Did Stoddard sign a waiver of conflict?

Sooner or later, Stoddard’s now-indirect, now-civil contempt (his refusal to follow a court’s coercive order outside the presence of the court), is going to become criminal contempt (punishment). How long will that take? Will appellate review happen first? I’m a little tired of living in a county that also serves as a punchline, but this whole thing sure makes for interesting news. I guess I don’t mind waiting a little bit longer.

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Posted in Clients, Courts, Government Rants | 7 Comments »

And The Machine Keeps on Running…

Friday, October 23rd, 2009

Adrian likes to call Maricopa County Superior Court “an enormous machine of injustice.” I think that’s a perfect description.

To some extent, every Arizona court hurriedly shuffles criminal defendants through one after another, but Maricopa County is especially cold and impersonal. Each person being prosecuted is one little thousandth of a percent added or subtracted from some number Andrew Thomas hopes to brag about come next election. Unavailable deputy county attorneys and a crowded master calendar serve to ensure that no defendant’s voice gets heard prior to trial, if at all.

More than anyone else, illegal immigrants find themselves on the conveyor belt heading straight into the machine. When sheriff’s deputies pick up a van full of illegals driving through the county, the wheels of the machine begin turning immediately. They’re all arrested and interviewed. When I see a client has an immigration hold, I expect a perfect confession to appear somewhere in the state’s disclosure. It’s an amazing coincidence. They admit to the crime and to their unlawful status in this country.

They will all be held without bond, and every passenger will get charged with conspiracy to smuggle themselves or solicitation. The driver will get charged with smuggling humans. Every passenger will get a plea to a class 6 designated felony stipulating to probation (which in reality means deportation), a term of jail equal to time-served (usually a month or two), and sentencing at the time of the change of plea (so they can immediately be handed over the immigration authorities). Everyone will enter that plea at their first pretrial conference. Always. There will never be any different pleas.

The driver, unless he’s a real coyote, will get a plea to a class 5 felony with no agreements as to the sentence. The driver could therefore get six months to two and a half years in prison or probation with up to a year of jail. I know of only two judges who hear these cases. One always give probation (meaning the driver is treated more or less the same as the passengers), and the other always gives prison. Every driver will also enter his or her cookie-cutter plea at the first pretrial conference. Always. Again, there will never be any different pleas.

In-custody Arizona defendants can have a trial within five months if they do not waive time. Without an awfully compelling issue and a Simpson hearing, illegals will spend that time in jail. Whether the verdict is guilty or not guilty at trial, they’re going to be deported. The real question for them is how much time they want to spend in Sheriff Joe‘s terrible jails. If they want less jail, they must take the plea. If they want more, they can go to trial. There are no other variables for them to consider.

When a bunch of illegal aliens get picked up at the same time, they typically get set for initial pretrial conferences on the same calendar. Everyone in court gets to see the machine operating at full steam. One after another, defendants stand up, plead guilty, get sentenced, and sit back down. Before long, they’ll all find themselves back in Mexico, somewhere near the border. I bet they’d like to never think about our country again, but it might be a long way back home, especially if they come from a southern state.

A large number of cases rolling through the Maricopa County machine have serious constitutional problems. All kind of procedural rules may have been broken by poorly trained deputies. Defense attorneys tell me about fabricated confessions, exactly the same word-for-word by a dozen or more illegals caught at once. I hear about Hispanic people stopped randomly on the street by deputies hoping to find illegals. When those people can’t produce papers to prove their legal status, they’re taken in and police claim they were part of a larger group arrested around the same time. If true, that’s absolutely terrifying.

The machine of injustice pumps out impressive numbers. I wouldn’t be surprised if the county attorney could claim a 100% conviction rate in these cases, and most of the defendants never see a second hearing. The price tag for that kind of percentage is a system that treats guilty and innocent alike, ensuring the outcome is identical for each. Of course, it isn’t our fault. It’s just the machine doing its job.

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Posted in Courts, immigration | 2 Comments »

Judges Aren't Always Right

Monday, October 12th, 2009

A week or two ago, I saw a judge make a ruling completely contrary to the law. It happens, but usually not so obviously.

The judge was hearing a number of pleas at once. Two of the defendants were in custody and pleading to aggravated DUI. Pursuant to A.R.S. § 28-1383(D) and (E), certain types of felony DUI require that a defendant spend a certain amount of time in prison before being placed on probation.

In Arizona, prison and jail are different. Jails are run by counties and cities, and felony defendants spend their time in county jail pending resolution of their criminal matters. Prisons are run by the state. You can only go to prison if you are sentenced.

Both of those pleading defendants were in custody and had pleas stipulating to probation with the mandatory prison required by the statute. Both had pleas giving them credit against the mandatory prison term for the time they spent in jail prior to sentencing.

The judge indicated he could not give them credit for jail served because the statute specifically said the time had to be “in prison.” On its face, that seems to be what the statute requires. It isn’t, and the judge was wrong.

A.R.S.§ 13-709(B) provides that “[a]ll time actually spent in custody pursuant to an offense until the prisoner is sentenced to imprisonment for such offense shall be credited against the term of imprisonment.” There are cases from each division of the Court of Appeals of Arizona holding that DWI statutes do not preclude credit for presentence incarceration time. Some are still good law and over a decade old (for the Arizona lawyers reading this, check out State v. Nihiser, 191 Ariz. 199 from Division Two in 1997 and State v. Mathieu, 165 Ariz. 20 from Division One in 1990).

The judge told the lawyers he would not give their clients the presentence incarceration credit required by the pleas, and neither attorney was able to convince him he was permitted to do otherwise. Each matter was continued for a week or two so the attorneys could work out an agreement that fit the judge’s concept of what the law required.

Hopefully, the attorneys have already brought to the judge’s attention the statute and cases I mentioned above. I sent one of them the cites after the hearing, and I hope both clients enter those pleas again as soon as possible. I hope the judge has realized he was wrong. There’s no way he could have been right.

Here’s what I really wonder: when the judge realizes his mistake, if he hasn’t already, will he feel bad? What if one of those defendants ends up serving an extra week or two because of the continuance he forced based on incorrect legal principles? Will he only be embarrassed about being wrong, or will he feel guilt about mistakenly depriving two people of their freedom?

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Posted in Arizona Cases, Arizona Statutes, Courts, DUI | No Comments »

They Don't Mean It

Sunday, September 27th, 2009

I’ve been noticing a lot of signs in court buildings saying something to the effect of “if you are exhibiting flu-like symptoms, please be courteous and stay home.” I guess the whole swine flu scare is just now reaching the courts. The signs aren’t a bad idea, but I find them misleading.

I doubt many judges would be willing to excuse a defendant from court because of flu-like symptoms. Last week I saw a tribal court judge issue a bench warrant for a terminally ill defendant who missed court because she was too sick to leave the hospital. Does a defendant with flu-like symptoms, someone not even verifiably suffering from a full-fledged case of the flu, really have a chance of having his or her absence excused?

If people took the signs literally, there would be a lot more bench warrants. There would be a lot more orders to show cause and judge-imposed sanctions against defense lawyers. Judges don’t seem terribly sympathetic when defense attorneys say they missed hearings because they woke up sick and couldn’t get coverage. Calling the court usually doesn’t help.

The signs should have a disclaimer. They’d be a lot less misleading if they said “prosecutors and court employees only: if you are exhibiting flu-like symptoms, please be courteous and stay home.”

The courts shouldn’t be telling people they are justified in missing hearings unless they’re willing to not get mad when they do. Judges may not like coughing, sneezing defendants, but an irritated judge is better than a bench warrant.

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Posted in Courts, Government Rants | No Comments »

Wasting Tax Dollars

Tuesday, August 18th, 2009

I currently represent a client charged with possession of marijuana. By itself, that’s not unusual. What is unusual, however, is that the state claims he had weed in prison. He just finished serving his 18th year, and he’s got a little over 56 years left to go. He’s middle-aged.

Why would the state choose to prosecute such a case? What else can they do to him? He’s going to enjoy his field trips to court. If he goes to trial, it’s going to feel good to wear street clothes and take the restraints off, even if it’s just for a little while. What kind of plea is a “lifer” going to want to take?

The prosecutor knows all of this because I told him. He doesn’t seem to care.

Dockets are already too full. Everyone in the system is already overworked. When I hear about budget cuts, I wonder how much of the budget goes to meaningless prosecutions. Win or lose, the practical effect of my client’s case is going to be the same: it won’t matter. We will all just be a little bit busier for the next few months.

I will file motions. In this case, there may be a lot of them. I suspect I will have to litigate some discovery issues, and I will spend time dealing with voir dire and jury instructions. I’ll write and send out a variety of letters and notices before all is said and done. The state will have to deal with everything I submit, and the judge will have to rule. I will conduct officer interviews, prepare my arguments, and devote a few days to trial.

Trials are expensive. Court personnel will be in attendance, and the sheriff will have to transport my client there from prison. My client will need clothes, and a court reporter will have to be there for all proceedings. Jurors will take time from their busy schedules to attend trial, and the judge will not be hearing other cases. The courtroom will be occupied, air-conditioning blasting.

I enjoy trial, but I’m not crazy about wasting tax dollars on pointless cases. This case is pointless. Does anyone disagree? Under what theory of punishment can the prosecution be justified? Why should taxpayers be forced to pay for such a ridiculous show?

Please, someone enlighten me.

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Posted in Courts, Prosecutors | 7 Comments »

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