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.

I only had the case for about ninety days, and I was the client’s fifth or sixth lawyer, depending on whether you count his third (and last) public defender. I know his first two public defenders pretty well, and I could tell from the file that they really worked his case. They are great lawyers, and he was lucky to have them. Unfortunately, he didn’t agree. He filed some documents with the court saying not-so-nice things about the public defender’s office and his first lawyer in particular.

My client’s friend only brought him one shirt for trial, and I didn’t find that out until the second day of trial. My office is an hour from court. My house is even farther. Knowing the public defender had trial clothes for defendants, I asked if I could borrow a shirt. Maybe I shouldn’t have asked, but I did. I’ve had appointed clients complain about me being a “public pretender” in letters and pro per pleadings, and I’ve never taken it personally. People tend to undervalue what they don’t pay for themselves. I’d have given any of them a shirt. Not doing that just inconveniences their next attorney.

Well, the public defender felt differently. The receptionist was okay with me perusing their wardrobe, but the public defender herself came up and asked me who was going to get the clothes. Not just a public defender, but the public defender, the county official in charge of the office. She told me she would not let my client wear one of her office’s shirts because he “dissed” one of her lawyers. I got to spend a morning recess shopping for my client.

I’d consider the public defender who got the brunt of my client’s ire a friend. We’ve even discussed the case over beers. He later told me he would have gotten me a shirt if I’d asked him. Does anyone think I was wrong asking his office for a shirt? Does anyone think the public defender was right refusing to give me one?

Another thing that stood out was my conversation with jurors after trial. Win or lose, I haven’t had much luck with jurors wanting to talk after trial. These jurors were different, and what they told me increased my faith in juries.

All of the jurors said the case came down to reasonable doubt. They doubted the victim’s story, they doubted the physical evidence in the case, and they doubted the police investigation. It made me feel good that they actually thought about the burden of proof and the fact the state had to prove my client guilty beyond a reasonable doubt. After a 2009 with nonsensical and even internally inconsistent verdicts for and against me, it made me happy to hear from smart jurors who clearly took their duties seriously.

Finally, the trial made me think about risk tolerance. On the first day of trial, the prosecutor offered my client a plea to time served. My client could have walked out of jail that day, but he rejected the offer. He spent three extra days in custody during trial and risked spending a decade or more in prison. The gamble paid off for him in the end, but it wasn’t always clear it would. The victim recanted prior to trial, but she eventually recanted her recantation. Over a plethora of objections, the prosecutor even admitted into evidence a letter from my client telling her what to say. Some of the time, my case looked downright ugly.

I can honestly say I would have taken the plea. Innocent or not, I would’ve done it. No doubt about it. I don’t mind risk, but in my client’s situation, it would’ve been too much. I firmly believe there is no such thing as a guaranteed winner at trial. Should I trust the system more? Would any of you have done what my client did?

The case involved an extensive, multi-jurisdictional wiretapping investigation. My client was accused of conspiring to purchase drugs and using a wire communication to facilitate a felony drug crime. He claimed it wasn’t him on the phone. We wanted to use an expert to eliminate my client as a potential match for the voice on the recording.

I inherited the case from another defense attorney who had already gotten the court to appoint a forensic voice expert. I contacted that expert, but it turned out he was unable to handle the case. When I asked him for recommendations, he gave me a few names. I did a fair amount of research on my own and ended up settling on one of those experts.

The man I hired had an incredible resume, and I got a good feeling speaking with him on the phone. He was extremely professional and seemed to know exactly what he was doing. I could see why he came so highly recommended.

I sent the expert the recordings he was supposed to analyze as well as the notes and synopsis of the agent who was listening in on the calls. I thought that would help him navigate through the conversation. I also described to him on the phone and via email what my client was alleged to have said in the conversation in question.

When he sent me the exemplars he wanted my client to read, he only indicated that I should contact his office to set up a time for my client to perform them. They were very simple exemplars, mostly single words like “yeah” or “alright.” It wasn’t a verbatim transcript of what my client allegedly said, but it was close. The exemplars included words that both speakers used as well as one phrase only the speaker not alleged to be my client used. I believed the expert was using that to compare my client’s voice to a known negative.

My client performed the exemplars as planned, and I received the expert’s report. It was inconclusive but suggested my client was somehow altering his voice to avoid a match.

The expert’s “aural evaluation” noted inconsistency relative to pitch and syllable and consonant production. Basically, he thought the frequency of my client’s voice varied too much. To him, that suggested my client was trying to disguise his voice.

The “spectrographic evaluation,” which the expert claimed measured variables people could not manipulate, showed consistency between my client and the unknown speaker. That portion of the report seemed very scientific, with exhibits, charts, and complex computer-generated representations. The visual comparisons looked very similar.

Basically, the portion of the test that most people would trust as being scientific and therefore infallible showed a match. That was the portion the expert claimed my client could not affect by altering his voice. The portion of the test he could affect showed inconsistent speech, indicating deception.

Here’s the problem: I believed my client when he insisted it wasn’t him. I thought the voice on the recording sounded nothing like my client, and I heard him perform the exemplars and thought he read them exactly how he normally spoke. He has a very distinctive voice and speaking style, but it didn’t seem like he was disguising anything.

I spoke with the expert and tried to figure out how certain he was about the spectrographic analysis. He was pretty sure. I explained my concerns and mentioned my client’s insistence that it wasn’t him.

At some point in the conversation, we discussed the exemplars. I asked whether the results might be different if he used a verbatim transcript of the conversation for comparison. I asked him if the known negative he included in the exemplars also showed a match on the spectrograph.

The mood of the expert changed completely when I asked that second question. He told me there was no known negative. My mood changed too. I think we both realized at the same time what had happened: he did the analysis on the wrong speaker.

It took us a little while to figure out how he ended up doing the analysis on the other voice. It turned out that a portion on the reviewer’s notes from the prosecutor’s disclosure inverted the known speaker’s name and the unidentified voice alleged to be my client. That erroneous portion was what the expert relied on in determining which voice he was supposed to identify. The mix-up wasn’t clear from the exemplars because each of the speakers said such similar things in the short conversation.

I felt like a moron. The expert was not happy. More than anything, he seemed extremely concerned with the whole situation. His report may have been inconclusive, but if he was the prosecution’s expert witness at trial, his testimony probably would’ve been more than enough to convince a jury that the speaker was my client and he just disguised his voice to avoid a match. I don’t think that fact was lost on him.

The expert agreed to redo the test, and we started the whole process over again. The second time, however, the expert’s finding was a probable elimination. According to his second report, the unknown speaker in all likelihood was not my client.

The experience left me very skeptical about voice identification. It made me wonder if other supposedly scientific technologies that make their way into the courtroom are as problematic. I wasn’t shocked when I read this report from the NAS on issues with forensic analysts. If my expert, a world-renowned expert in his field, got a false match, why should I trust a government employee with the minimum training and college science credits necessary for the job?

As a lawyer, I’m used to dealing with gray areas. After a long day of answering every question with “maybe” or “it depends,” it would be nice to know I have a scientific expert who can tell me “yes” or “no.” Other lawyers probably feel the same way. Most lawyers, prosecutors and defense attorneys alike, are comforted by the idea of a detached scientific expert making their case with an unambiguous answer. We should be more skeptical.

In the end, the case against my client got dismissed prior to trial. The case was weak to begin with, and the expert’s second report was the final nail in the coffin. I was a little surprised the prosecutor ultimately trusted the expert’s report, but maybe she just really wanted a definite answer. She’s one of the fairest and most experienced prosecutors I work with regularly, so it may be that the report, while not perfect, was just enough to give her a reasonable doubt. She could have had a field day with him at trial.

Maybe the thrill of science-like evidence hadn’t faded for her. Maybe she listened to the recording again and compared it to my client’s manner of speech. It was so clearly not him that I still think the case should have been dead in the water a lot earlier. Instead, we used an expert whose expert technology almost got a match for the wrong guy. Are we so enamored with science in the courtroom that we abandon our own ears and common sense in favor marginally-accurate technology? No need to respond, I know the answer.

My client was out of custody and suffered no negative consequences as a result of the mix-up. He was pretty stunned by the whole expert debacle and thinking about my conversations with him ultimately convinced me to post this. He was happy to be done with the case, and so was I.

Although the case is over now, I doubt I’ll quit thinking about the experience. I know I’ll never look at any expert the same way.

(H/T Kris and Bob)

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?

Admittedly, the tactic can be helpful. If I miss the first call because I’m a little too slow picking up and the number shows up as unknown, it’s nice to have a second chance. The tactic is less helpful when I’m not picking up because I’m in the middle of something more pressing. That’s frequently the case.

Most missed double-calls don’t result in a message, which is highly irritating. If it’s worth calling me twice, it’s worth leaving a message. If you’re calling about one of my cases, I really care about what you have to say. It’s extremely important to me, and having two missed calls from an unknown number with no voicemail is a waste of everybody’s time. I’ll rarely be irritated by a double-call if there’s a voicemail for me after the second one.

I recently had a series of telephonic interviews take up an entire afternoon. The first telephonic interview ended up turning into double-call hell. I had just moved into a new office with a new phone system that included additional phone lines. I didn’t use the do-not-disturb button because, quite frankly, I had no idea what “DND” stood for. I regretted not learning its meaning earlier.

The subject of the first telephonic interview called my cell phone. I put him on speakerphone and began the interview. Immediately, I got a double-call on my cell phone from an unknown number with no message. Undeterred, the double-caller then contacted the receptionist and requested to be transferred to my cell phone. The next double-call showed up as an unknown number being forwarded by the receptionist. No voicemail. Next, my direct office line got double-called from an unknown number with no message. The caller then did the same receptionist-forwarded double-call trick he did with my cell phone. Still no message.

As if he or she was playing some kind of joke on me, the direct line in Adrian’s office rang four times. In pairs, of course. No voicemail. Then the main office number rang four times, again in pairs. No voicemail, just missed unknown calls in sets, first straight from an unknown number then from an unknown number forwarded from the receptionist. I love the receptionists and am fairly confident the double-caller was engaging in some serious trickery to get that many calls through without anyone taking down his or her information.

In the end, the double-caller double-called me eight times, resulting in a total of sixteen calls before I could finish that first telephonic interview. He or she never left a message. Not once.

Part of me worries that I missed something important. Could it have been more important than an interview with a key witness in a serious felony case? Why didn’t the caller leave a message? I still have no clue who was calling.

If you were the one double-calling me over and over, please don’t do that again. If you can leave me a message, do it. It will be returned quickly. I guarantee. I can also guarantee that if the first double-call doesn’t get the desired result and you can’t leave a message, you should wait a little while before you try a second time. Double-calling every phone line within earshot of my office one after another will only succeed in pissing me off.

Nobody here is safe, and this should be getting a lot more press. The mainstream, national media seems to be ignoring Maricopa County altogether. I’m still seeing more traffic going to posts about David DeCosta and smoking bans than goes to posts about what could be the breakdown of constitutional government as we know it. It seems no one is listening.

Scott Greenfield even started losing interest, but Mark Bennett argued Maricopa matters. That prompted another post from Scott about what power, if any, us blawgers have to make a difference.

I like to think that things I do are important, but I also try to be realistic. I don’t know if anyone cares what I think. I don’t know if most people in Maricopa County care about what anyone thinks. Read this opinion and the comments. Read the first comment to this post. A lot of people seem to think this is an attack on Sheriff Joe by people who oppose his tough stance on illegal immigration. Those people probably don’t read blawgs. They probably don’t read the New York Times either. They don’t like undocumented immigrants, and any attack on the sheriff is an attack on their position on the issue that matters most to them.

I doubt that anyone outside of Maricopa County has the power to make a difference. The feds have more firepower than Sheriff Joe, but what makes people think the DOJ is willing to do anything meaningful about it? I’d love to see a national opinion poll on what Sheriff Joe is doing. The DOJ can start as many hotlines as it wants, but it’ll just incite people to write things like this and this. It’ll rally the troops behind Sheriff Joe.

The question I pose in this post’s title isn’t rhetorical. The solutions I’ve proposed all involve changing the way people think. I can write all I want, but I can’t make people read. I can speak all I want, but I can’t make people listen. A little less than half of my caseload is in Maricopa County, but that’s increasing. The number of battles I fight on behalf of individual clients may grow, but that isn’t the kind of change it takes to stop the insanity here.

If I’m right and the only way to end this is by changing public opinion, how do I help? This blog probably isn’t enough. My caseload isn’t enough. If there’s some way to change things without having to change the way people think, what is it?

I don’t have much to add, as the absurdity of the situation here speaks for itself. We have elected a sheriff who thinks he has unlimited powers and a county attorney who seems to support him. The courts can’t control either of them, so they’re running wild.

From my perspective, it looks likes the judges here are cognizant of their lack of an army to fight the sheriff. Because of that, they either issue orders they expect he’ll follow or leave compliance up to someone else. Here, they made it so Sheriff Joe could say “fat chance” when they ordered Stoddard to do something, but Stoddard ultimately decided to follow the court’s order. Sheriff Joe appeared to stand strong, and the court’s power appeared intact. Clever compromise by the court, right? Unfortunately not.

The problem the courts have encountered is this: give the sheriff an inch and he’ll take a mile. The courts need to draw a line. They should have done that long ago. They need to order Sheriff Joe to do something then force him to comply when he refuses. Their willingness to appease him seems to have made him think he’s invincible.

It’s also made him unbelievably popular, which is why he may continue to get away with this kind of stuff. As I’ve said before, I can’t even convince my clients that what Sheriff Joe does is wrong. They know he made up statutes to fight illegal immigration and lied about sentences to make Donahoe look bad. They don’t care. They like him because he’s tough and uncompromising. Usually, someone else has to suffer. Without clear boundaries and a standoff between Sheriff Joe and the courts, maybe one with the National Guard backing the courts, this is probably never going to end.

UPDATE: Although it seemed this couldn’t get more surreal, right after I posted this, Nick Martin mentioned on Twitter that criminal charges were being filed against Donahoe by the county attorney. Sure enough, according to the New Times and the East Valley Tribune, Donahoe is being charged with hindering prosecution. There will be a press conference at noon regarding the charges.

Liddy’s newest filing, which you can peruse here, is confusing for a number of reasons. It looks like Liddy’s work is officially being done by private counsel, Michele Iafrate, a former attorney with his office. The filing lists only her name above the caption, then lists her name first where signatures go. She also appears to be signing on his behalf, though for all I know, she may by signing above his name and writing “for” because she now represents Liddy. If that’s the case, it’s awfully sad that Stoddard’s lawyer gets a lawyer while Stoddard is stuck being represented by an office that, given its close ties to Stoddard’s boss, may have a serious conflict of interest.

Mostly, the filing is strange because it’s being filed in Donahoe’s court. My post-conviction relief clients, whose petitions must be filed with the trial court, are smart enough to know that their best bet for relief is with a different court. They can’t wait for review by an appellate court. It could be that I have uncommonly bright clients, but the county attorney should certainly be able to figure that out too.

The filing is also unusual in that it acknowledges that a special action is going to be filed, but it says nothing very specific, and certainly nothing convincing, about why the privileged documents need to be unsealed before that can happen. My guess is that Stoddard was ordered to pull the documents and copy them as part of some fishing expedition. He did his best to justify it, but because he had no good reason to do it in the first place, the county attorney now needs to view the documents to pick them apart and fabricate some kind of elaborate defense showing the sheriff’s office was in fact foiling some evil conspiracy, or at least preventing some minor threat.

Without the documents, attacking Donahoe’s ruling shouldn’t be that hard. Facts aside, the law seems against Donahoe. He should have held Stoddard in direct criminal contempt. I’ve said it, as did Mark Bennett before me. Now, it’s just one big mess. No one seems to agree about when Stoddard was held in contempt, or even if he is or has ever been in contempt.

I’ve heard a few people say Donahoe never actually held Stoddard in contempt. They argue the wording of the order was misleading and that Donahoe just ordered Stoddard to apologize, threatening contempt and jail should he refuse to comply. If Donahoe just issued an order to apologize then held Stoddard in contempt after the unapologetic press conference, they might have a point. The problem is that Donahoe said, “IT IS FURTHER ORDERED holding Detention Officer Adam Stoddard in indirect civil contempt of court.” I’m not sold.

Also, some people are now claiming Stoddard is really in indirect civil contempt, making Donahoe’s order accurate. Others are claiming he isn’t in contempt at all. People claiming he isn’t in contempt cite the fact he was ordered to jail and went. People on the other side claim the order was to apologize, that the way to avoid contempt was to apologize, and that not apologizing would result in Stoddard being in contempt and having to go to jail. Again, I’m not sold. Donahoe’s order made it clear Stoddard was in fact in contempt and that apologizing merely purged that finding.

In general, contempt in Arizona isn’t terribly complex. Here’s what our Supreme Court said:

Criminal contempt is the commission of a disrespectful act directed at the court itself which obstructs justice; civil contempt is the disobedience of a court order directing an act for the benefit or advantage of the opposing party to the litigation. Also, the same acts may be both criminal contempt and civil contempt, and quite often are. The classification of contempt as criminal, civil, direct or indirect is merely a judicial device for determining the procedure to follow in each case. We are satisfied that we are dealing with a criminal contempt as the primary purpose of respondent’s action was to punish for petitioner’s alleged disrespect to the court and attempted obstruction of justice.

Ong Hing v. Thurston, 101 Ariz. 92, 98 (1966) (internal citations and quotations omitted). Other cases more thoroughly analyze whether specific circumstances constitute contempt, but that’s the best general explanation. From what I can tell, none of the more specific cases, even the one Donahoe cited, does a great deal to support the contempt finding or classification in Stoddard’s case.

Based on the law and the facts publicly available at this point, without looking at the privileged documents at all, isn’t it at least possible that there’s enough to convince another court that Donahoe abused his discretion? How much of a difference will the contents of the documents, which Stoddard can’t even recall, have on the outcome? Donahoe abused his discretion if he misapplied the law or predicated his decision on incorrect legal principles, and Stoddard has a decent argument he did. What Stoddard’s lawyer filed was too little. As Lozano’s lawyer explained, it’s also too late.

Everything I know about this case comes from the news sources and commentary I’ve cited here, so I’m no expert. However, it looks like Liddy had more than enough to file a special action before Stoddard surrendered.

In Arizona, the term “special action” encompasses a number of different things. Basically, it’s the vehicle used in Arizona to obtain relief previously obtained against a body, officer, or person by writs of certiorari, mandamus, or prohibition. That’s explained in the rules. It was intended to simplify the process by creating one cause of action instead of a number of different, confusing writs, each with its own unique rules. Apparently, there was a lot of frustration, and different rulings often came down based on minute differences in the nature of the filing. I wasn’t practicing here before they were consolidated, so I can’t really say if things are any better now.

Special actions are rarely granted because jurisdiction is highly discretionary. It’s appropriate when no equally plain, speedy, and adequate remedy is available, and a special action can be accepted when under no rule of law can a trial court’s actions be justified. I understand that each division of the court of appeals rejects about ninety percent of special actions. In Stoddard’s case, though, a special action would have had a far higher than normal likelihood of being accepted because civil contempt orders are not appealable, with very few exceptions. The case law makes it clear that the review remedy is special action.

Liddy could have filed a special action as soon as Donahoe made his ruling, well before Stoddard had to apologize or go to jail. To request a stay from the court of appeals in a special action, you only have to request one below. Liddy did that. He had a chance to ask another court for more time, but he didn’t. Stoddard went to jail. Why?

To some extent, I can see why Liddy would want some time before filing a special action. There is no record other than what you create and provide, so he’ll want a transcript of proceedings or at least a recording. Did he immediately request either of those? Does Liddy really think the document is that big a deal, or was it really just a fishing expedition Liddy now has to justify? Is he just showing everyone how little he values our rights? Even if Donahoe ends up being a little off on his ruling about unsealing the documents, I see the face of Donahoe’s contempt order as the better issue.

If Liddy’s objective was to keep his client out of jail, his strategy for achieving that seems highly ineffective. I can’t imagine the thought of avoiding jail for Stoddard was that much of a concern for Liddy, or he would’ve handled this very differently. On the other hand, if his objective was to get press for the sheriff’s office or continue showing utter disregard for attorney-client privilege and the constitution, I’d say he’s doing a great job.

Now that Stoddard is in jail, the relief remedy is likely still a special action. Civil contempt can become criminal contempt when someone has refused to comply for long enough, and criminal contempt is specifically appealable by statute. However, Stoddard will probably spend an awful lot of time in jail before that happens. I only see Liddy waiting a while and filing an appeal on those jurisdictional grounds if his goal really is to maximize jail for his client.

You may be wondering why the word “habeas” hasn’t come up much in all of this. In Arizona, habeas applies to someone who is “unlawfully committed, detained, confined or restrained of his liberty.” That now applies to Stoddard, but the special action is thought by many Arizona lawyers to now encompass the writ of habeas corpus as well. Although there are still specific habeas laws on the books, the bar notes for the rules on special actions call the writs replaced by the special actions “extraordinary writs,” and Article 6, Section 5 of the Arizona Constitution calls habeas corpus, quo warranto, mandamus and injunction “other extraordinary writs.” The Court of Appeals, Division Two, has flat-out said that the writ of habeas corpus has largely been replaced by the special action proceeding and our post-conviction relief rule, and smart lawyers and at least one judge who teaches a CLE on special actions believe that the special action has supplanted the state writ of habeas corpus altogether. The fact Liddy is saying he wants to file a special action on behalf of his jailed client probably shows his feelings on the subject.

It seems obvious to me that Liddy should have filed a special action and request for a stay before Stoddard surrendered. It seems obvious to me that Liddy should now file a special action or habeas petition. The sooner he files it, the sooner another court reviews Donahoe’s order. I see no benefit whatsoever in waiting for Stoddard’s detention to become appealable, criminal contempt. I seriously doubt the Court of Appeals, Division One, is going to deny special action jurisdiction when Stoddard has no other sufficient remedy. The issues with the highest likelihood of success are as good now as they’ll ever be.

This would all make sense if Liddy’s goal was to keep Stoddard in jail and in the news. That seems more like Sheriff Joe’s agenda that Stoddard’s, and I hope that isn’t the case. If it is, shame on Liddy. If it isn’t, I wonder what he’s thinking.