“After 6-hour trial, Snowbowl protester still guilty,” the title reads.

It’s amazing the words “still guilty” made it through editing. I assume that the author intended to somehow emphasize that, despite what she perceives to be a lengthy trial, the defendant did not prevail. “Snowbowl protester found guilty after 6-hour trial” probably would’ve conveyed that just fine. It also would’ve avoided the frustrating misconceptions that abound from the title she actually chose.

Her title suggests the poor guy was guilty from the start. It’s like he was presumed guilty, but through some sort of legal magic he was able to suspend his obvious culpability for a moment. Now that the smoke has cleared, everyone can rest assured that he’s still guilty.

It’s as if he hadn’t entered a not guilty plea at his first hearing. It’s as if the state doesn’t bear the burden of proof. It’s as if he wasn’t legally innocent until the very moment the verdict came down. All the trial did, the article seems to suggest, was confirm what everyone thought they knew all along.

Now that I think about it, maybe the author does know a little something about the criminal justice system. That sure makes the article a lot more depressing.

If you aren’t sold on not filing Anders briefs solely because they’re humiliating to any competent lawyer, Arizona’s court of appeals recently provided another reason. In an opinion last week, the court disagreed with an appellate public defender’s assessment that only frivolous issues existed on appeal. The lawyer apparently reviewed the record enough to set forth a sufficient background to reveal potential issues, but he didn’t see at least one issue that the court saw.

I can’t imagine much worse for a lawyer than having a court that regularly shoots him down find an issue that he didn’t see based on his own version of facts. How’s that for incentive to not file an Anders brief? The issue the appeals court noted was whether the trial court erred by denying the defendant’s motion for new trial based on the fact a juror conducted outside research and told the rest of the panel about it. The court directed the lawyer who filed the Anders brief to file a new opening brief setting forth any non-frivolous issues, including that one.

I’m all about courts overturning convictions, and it sounds like there may have existed one hell of an issue. Sadly, I’m not thrilled about the opinion. Instead, I’m reminded of poor Charlie Brown and the football.

You probably remember that Lucy loves convincing Charlie Brown to run up and try to kick the football. It’s always her idea. She brings the football to him, and despite his reservations, she somehow manages to make him give it a try. Every time, she pulls that football away at the last moment, causing poor Charlie Brown to flip up in the air and land on his ass. Charlie Brown never actually gets the satisfaction of making contact. Instead, Lucy sets him up for failure, over and over again.

Arizona’s courts occasionally stretch the meaning of statutes to no end in upholding convictions. I’ve complained about felony flight before, but that’s the tip of the iceberg. If there’s some way to make a defendant’s conduct arguably constitute the crimes involved, text of the statute be damned. The stretch also applies to the constitution, the discovery rules, and pretty much everything else. I’ve had issues where the lower court is so clearly wrong that it almost defies belief. The reviewing court almost always figures out some way to punt. With special actions, they decline jurisdiction. With appeals, they stick with stare decisis or procedural errors by the defense. I’ve never seen an issue so good that a judge so inclined couldn’t reason it away.

Getting back to Charlie Brown, as much as I love the fact the court is setting up a nice, pretty football for defense counsel to try to kick, I’m pretty sure this isn’t going to end well for the defense. Should he have raised it to begin with? Of course. Is he going to win in the end? I doubt it.

My bet is that the court of appeals is going to defer to the trial court’s findings of fact regarding the information provided to the jury and its impact. Or maybe it’ll find a case from long, long ago in a place far, far away that arguably supports whatever crazy theory the state comes up with in its response. Okay, I’m probably giving the state way too much credit; I usually lose based on arguments the other side didn’t even raise. Perhaps the court will just go with the ol’ standby, “harmless error.” I may not be able to predict exactly how it’ll do it, but I’m fairly certain it’ll happen. Sure the juror messed up, but the defendant was totally guilty, right? Off with his head!

I like the opinion, and I want the defense to win. I just hope the court doesn’t pull a Lucy and put appellate counsel through the trouble of raising all kinds of issues only to shoot them down, one by one. I always felt bad for poor Charlie Brown, and the situation the court of appeals has created seems eerily familiar.

H/T Andrew Becke and Xochitl

Curious, I looked up the case and read the facts. An officer was patrolling the three lanes of westbound traffic on I-10 in Tucson when he saw a pickup truck in the far-left lane going under the 65 mile-per-hour speed limit. The officer noticed other cars were slowing behind the black pickup and passing it in the center lane. When the speed limit increased to 75 miles per hour, the officer paced the truck, which stayed in the far left lane going 60 to 65 miles per hour. The officer gave the truck plenty of opportunity to move into the right-hand lane, but vehicles continued to pass it on the right. Two cars had to slow behind the truck. The officer eventually initiated a traffic stop and saw five undocumented immigrants hiding in the back seat.

The opinion is about whether the officer had reasonable suspicion for the stop, and the magistrate recommends the court find he did. Honestly, though, that isn’t what matters to me. This is the type of case I wouldn’t touch with a ten-foot pole.

I know plenty of defense lawyers who won’t represent defendants in certain types of cases because they find the subject matter disturbing. They’re usually bothered by sex crimes or crimes against children, and they don’t take those cases because they can’t set aside their personal feelings and properly represent the client. For me, this is that type of case. It strikes far too close to home for me to look at the facts and fully consider the legal issues. Emotions get in the way. I just couldn’t represent the driver, and it isn’t because I care about whether he was smuggling humans or not. The problem is that the evidence suggests he was going under the speed limit in the left lane.

Here in Arizona, we’re all about highways. We have high speed limits, though not quite high enough, and lots of lanes, though still far fewer than we need. Highways connect everything. It’s a big state, and the only way most people get from one point to another is by driving. I occasionally feel like I’m more of a driver than a lawyer. It’s rare for me to travel less than 250 miles in a week. Often, I have to drive two or three times that much.

Nothing ruins a pleasant drive through the desert quite like some idiot in a beat-up truck going under the speed limit in the left lane. I’ve lost countless hours of productivity, perhaps days of my life if you add it all up, to people going way too slow in the left lane. As much as the criminal defense lawyer in me wants to see a motion to suppress granted, the driver in me wants to see someone punished for driving too slow in the passing lane. In this instance, the driver in me wins.

I find the opinion disturbing because of the callousness with which the court addresses the defendant’s abominable driving. This is no mere swerve over a marked line. This isn’t extreme speeding or an expired tag. Those things don’t really affect anyone. This moron had three beautiful, wide, newly-paved lanes in which to travel. He was on the fourth-longest highway in the country in a major metropolitan area. The monumental stupidity of his decision to pick the left-most lane in which to travel under the speed limit defies belief. Whatever punishment he gets for smuggling isn’t nearly enough to provide retributive justice for the heinous and unforgivable crime of going too slow in the far left lane.

You wouldn’t see a news article saying “Man stopped fleeing scene after murdering family, officer finds he is unable to provide proof of insurance.” Why do we care about a bunch of guys hunkered down in the backseat catching a ride to Phoenix? The defendant could’ve had a semi-trailer full of people and I wouldn’t care. They could be sitting on bales of marijuana carrying fully-automatic assault rifles. I wouldn’t bat an eyelash. Who cares? Not me, that’s for sure.

What has this world come to when we think that a victimless crime like smuggling humans is the greater harm based on those facts? How twisted must our priorities be for us to think that a dangerously slow driver in the left lane should be punished not for leaving numerous innocent and utterly helpless motorist-victims in his slow wake, but rather for being found to have some buddies in the backseat when he’s stopped?

We need to wake up. We’ve really lost sight of what matters. For shame.

There’s an Arizona court of appeals case from last year called State v. Sweeney. In it, the court held that, after a traffic stop has concluded, an officer must have reasonable cause to initiate a second detention of a suspect. Based on the totality of the circumstances, the officer in my case didn’t have reasonable suspicion of anything that would allow him to continue the detention by asking to search. It was a routine traffic stop in every conceivable way, yet the officer chose to detain the occupants again after the stop had already concluded.

The prosecutor claimed that my client, unlike the defendant in Sweeney, eventually consented to the search and wasn’t forced to wait for a drug drug. He thought the reasoning in Sweeney shouldn’t apply. He thought not only that those facts made the detention after the termination of the initial stop de minimis, a factor considered in Sweeney, but also that consent by itself should change the analysis. He got that from the part in Sweeney discussing State v. Box, which discussed de miminimus intrusions in greater depth. He didn’t think differences in the facts between my case and Box changed the analysis at all.

In the end, the suppression issue turned out to be moot, and speaking with the prosecutor long after the fact, he seemed to think that was good for me because I would’ve ended up “making bad law” for defendants. He thought an appellate court would severely narrow the ruling in Sweeney. He thought a case with bad facts, a description he used for my case, would lead an appellate court to make the de minimis exception swallow the rule or to broadly remove cases involving a consensual search from line of cases including Sweeney. What was most interesting to me was that he viewed all of that as a problem not just in the context of the case we had together. He seemed to think that I had a duty as a defense attorney to avoid creating case law that would limit the rights of defendants.

I was fascinated that he viewed my role as extending past the specific client I’m representing. He’s wrong, of course. I could have the worst facts in the world, the kind that would make the Supreme Court of the United States reconsider the exclusionary rule altogether, but if I thought they gave rise to a motion to suppress, especially one with enough merit to make it that far, I should probably file it. Sitting on a motion that’s worthy of appellate review almost sounds like malpractice. The most harm I can imagine any valid motion to suppress doing is to make the plea go away. Even then, a good motion results in a better plea more often than not, and when it does make the prosecutor pull the plea, it’s usually because the defense attorney is filing it because the case isn’t going to plead anyway.

Even more fascinating was the fact that the prosecutor thought the possibility of making bad law was anything more than wild speculation. Our court of appeals doesn’t have to issue published opinions. They can simply write a memorandum decision that cannot be cited, and if our supreme court denies the petition for review, nothing binding or even worthy of citation has occurred. Even if I had two clients with the same issue and one had a case facts that could lead an appellate court to change case law in a way that could theoretically affect the client in the other, I’d still file both unless there was some better reason not to do it. The odds of the worse case ever making it far enough to affect the other are slim to none. Speculative prejudice based on the speculative rulings of courts that don’t have to create precedent anyway sounds a lot like the kind of dubious “trial strategy” stuff lazy lawyers often say to justify their laziness during ineffective assistance of counsel proceedings. I’m not buying it in this context.

It’s strange that a smart, experienced prosecutor would so obviously misunderstand my duty as a criminal defense lawyer. It’s even more confusing to me that he would do it because of concerns about something that occurs only in the most unusual of cases. It confirms my skepticism towards prosecutors-turned-defense-lawyers. Assuming the issue has merit, I have no obligation to make good law or to avoid making bad law. My only obligations are to the person I represent, the one on the other side of the “V” from the state.

The self-defense statute justifies “threatening or using physical force against another.” It doesn’t necessarily justify possessing a firearm if you’re a prohibited possessor. Another statute justifies the defensive display of a firearm, again not specifically allowing a prohibited possessor to possess a firearm, and the statute governing the use of force in defense of a residential structure or occupied vehicle and the statute governing the use of force in crime prevention are effectively the same as the general self-defense law. The closest thing to a clear defense to being a prohibited possessor in possession of a firearm would be the necessity statute, and that doesn’t apply if the crime involves homicide or serious physical injury. I guess a convicted felon might have a good textual argument that he or she can defensively display a weapon, but he or she may be out of luck if he or she uses it.

There’s actually a case directly on point. The Court of Appeals of Arizona, Division One, has said that “a person who is prohibited by law from possessing deadly weapons is not entitled to the legal protection of [the use of force in crime prevention statute] when he uses a firearm.” In a footnote, the court mentioned that other justification defenses have been characterized as fundamental rights, whereas proactive crime prevention has not. In the end, the court didn’t want to “immunize convicted felons from the consequences of later criminal acts by permitting them to use deadly weapons that they are not allowed even to possess.” Based on that and the statutes, it would seem that prohibited possessors can probably defend themselves with a gun, but they can’t use it to stop crime.

If there’s a case on point, then why aren’t I more certain about this? Well, the opinion was depublished. Even though the Court of Appeals certified the opinion for publication, the Supreme Court of Arizona can depublish it before it becomes final, which it did. The Supreme Court doesn’t even have to say why, which it didn’t. I can tell you about a depublished case, but it isn’t regarded as precedent and can’t be cited in any court except for in certain very limited circumstances. Sadly, we’re left to speculate about the state of the law regarding the use of a firearm in self-defense by a prohibited possessor. Did the Supreme Court think a gun can be used by a felon in crime prevention? Did it agree with the ruling but disagree with the reasoning? Did it agree with the reasoning of the dissent? Did it agree with the opinion in general but dislike the footnote saying other justification defenses might apply to the prohibited possessor law? I can honestly tell you that I have absolutely no clue.

If you’re a prohibited possessor and you’re wondering if you can use a deadly weapon to save your life or the life of someone you love, I’m afraid I don’t have a definite answer for you. Your safest bet may be to hone your hand to hand combat skills. You might beat a murder or aggravated charge, but there’s a chance you may have no justification defense to a misconduct involving weapons charge. Careful with your combat skills though, lest a court decides your hands are designed for lethal use and you find yourself convicted of prohibited possession of deadly weapons simply by virtue of your training. Sadly, this isn’t a clear area of law.

Probation isn’t all fun and games though. An Arizona criminal defendant can get up to a year in the county jail as part of probation. That’s especially tough considering that many county jails are terrible. Clients often tell me they’d rather spend a long time in state prison than spend even one day in some of Sheriff Joe’s county facilities. I can’t imagine why, unless they happen to have some strange aversion to pink undergarments and two square meals of rancid bologna a day.

Unlike the length of probation, which is up to the court no matter what the parties say in the plea, the parties can stipulate to a specific term of jail. The state and a defendant may not bind the trial court to a fixed period of probation, but they can bind the trial court to a fixed period of jail. Kind of. That’s where the double standard comes in.

Let’s say the state offers a defendant a probation plea with six months of jail. If the court thinks that’s too much, it can reject the provision as inappropriate, but then the state can withdraw from the plea. In most cases, that means bad news for a defendant. He or she isn’t entering the plea because he wants to go to trial, and getting a new judge to accept the rejected plea in its entirety can be tough. The bargained-for jail term stands because the rules don’t give a court authority to reject a provision after it’s been accepted. If the jail term was the bargained-for and agreed-upon punishment for the crime, the judge simply doesn’t have the jurisdictional authority to change an otherwise lawful sentence. Again, kind of. This is where that double standard comes in.

What if the sentence is six months and the court wants to give more jail? At that point, it’s all about notice. The case law says that a defendant can’t be given more jail as a condition of probation than the amount of time he could otherwise receive as a sentence had he not been placed on probation, “unless [he or she] is advised of the possibility at the time he pleads guilty.” The necessary implication is that he can be given more as long as he has notice. Similarly, every defendant is advised that, when granting probation, a court “may require that [he or she] be imprisoned in the county jail at whatever time or intervals, consecutive or nonconsecutive, the court shall determine, within the period of probation, as long as the period actually spent in confinement does not exceed one year or the maximum period of imprisonment permitted under chapter 7 of this title, whichever is the shorter.”

Courts all seem to know that they can’t give less jail, but they frequently give more, and I’m not aware of a single case addressing whether a defendant can withdraw when the court gives more jail than the amount in the plea. Some judges tell me they think defendants can’t, while others say they can. It seems to me that this issue never gets litigated because of one big factor: leverage. If the judge gives a little more jail, the defendant is still probably going to be better off than he would be at trial. Most defendants aren’t going to risk ten years of prison because they got an extra month of jail. Defendants may not be able to withdraw, but regardless, even if they could, they wouldn’t because it’s still better than trial.

The end result is a double standard. With a probation plea, a defendant might get more jail than he expected, but he can’t get less. It’s unfair on its own, but it’s worse in light of the fact the courts shoot down things like the length of probation by saying that prosecutors controlling the conditions of probation “would be an infringement on the court’s jurisdiction over probationers.” Basically, the court gets to determine all the stuff that most prosecutors don’t care about, like the number of community service hours, but it doesn’t get to make the only thing that matters to most probationers better, just worse.

It might seem like the law is relatively pro-defendant in this area, but it isn’t. Courts make sure of that. “Subtle” differences don’t matter, and what courts are willing to call subtle is often anything but. The courts end up construing “subtle differences” as encompassing almost any difference. The people in the lineup basically just have to resemble one another. Courts also tend to ignore the portions of some controlling opinions saying the suspect’s photograph must not stand out. The case law is ridiculous.

There’s no problem if the defendant’s is the blurriest photograph. His can be the first, and it can even be the only one taken from a unique angle. That’s to be expected, but Arizona courts go several steps farther. The defendant can be the only one with a beard. He can be a different height and weight and have a different hair length from everyone else. He can have all of those difference and also be the only one with a mustache. That may seem bad, but it isn’t the worst. Believe it or not, it isn’t unduly suggestive to do a photo lineup where the defendant is disfigured, with two blackened eyes and a broken nose, and everyone else is fine. Apparently, Arizona courts think that looking like Rocky after fifteen rounds with Apollo Creed amounts to “a subtle difference” from your average guy-on-the-street.

If the case is serious enough, I imagine there’s no limit to what differences the courts are willing to call subtle. As in pretty much every area of the criminal law, courts tend to make it so whatever the state wants to admit is ultimately allowed, thus assuring a conviction. Given the absurd lengths to which they’ll go to uphold an identification, I almost wish they’d quit pretending to care about subtle differences and a basic resemblance and announce that any lineup is a constitutional lineup. At least that would be honest.

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.

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?

When Arizona’s Court of Appeals, Division Two came out with a related opinion in State v. Zaragoza, I put up another post about actual control. I was pretty negative about whether the opinion would make a difference. It turns out I was right to be negative, but for the wrong reasons. This summer, the Supreme Court of Arizona vacated the opinion of the Court of Appeals.

In Zaragoza, the defendant staggered to his car and got in. An officer pulled up behind him, shined his flashlight inside, and saw him in the driver’s seat with one hand on the steering wheel and the other putting the key into the ignition. Although he testified he just wanted to sleep in the car and planned to start the ignition to roll down the window and turn on the radio, the jury convicted him of felony DUI. The jury was instructed that “[t]he defendant is in actual physical control of the vehicle if, based on the totality of the circumstances shown by the evidence, his potential use of the vehicle presented a real danger to himself or others at the time alleged.” They were also given several factors to consider when deciding whether or not he controlled the vehicle.

The Court of Appeals reversed the trial court because they thought the phrase “potential use” misled the jury. The court was worried the jury found the defendant guilty based on hypothetical control. I think that’s reasonable, and in that respect, Zaragoza was one of the better opinions I’ve read. I was sad to see it overruled, but I wasn’t surprised.

The Supreme Court thought the Court of Appeals had it all wrong. They claimed “a conviction could not be premised on speculative potential use” and said “[t]he instruction does not raise the specter that any impaired person with access to a vehicle could be convicted for being in actual physical control of a vehicle.” Apparently, the words “presented a real danger to himself or others” made everything okay.

Obviously, I disagree. Saying “presented a real danger to himself or others at the time alleged” does nothing to avoid convictions based on speculative potential use. I interpret those words as only ensuring your speculative potential use is actually dangerous. Because a vehicle is involved, they are pointless. Of course your hypothetical use is dangerous. I imagine quite a few jurors will interpret it like I do. The nuances of those magic words the Supreme Court trusts so much will probably be lost on quite a few jurors too.

After making the conclusory statement that the instruction simply cannot be interpreted the way the Court of Appeals and I interpret it (an amazing claim, seeing as how we did in fact interpret it that way), they go on to claim it won’t result in any impaired person with access to a vehicle being convicted of DUI. That’s equally silly. Isn’t that the point of all this?

First, we were only worried about actual “driving” under the influence. Then, we got tough on those rascally drunk drivers who don’t drive by punishing drunk people with actual control of a vehicle. At that time, we thought we should allow drivers who realized they were impaired to pull completely off the highway, turn the off the car, and sleep without fear of being arrested for DUI. Unsurprisingly, we got tough again. We decided to just have the jury look at the totality of the circumstances to determine if there was actual physical control.

What’s a jury going to do when they hear about drinking and a motor vehicle? Seriously. This is going to be their reasoning: “drinking scary, car scary, drinking plus car very scary.” In Zaragoza, the Supreme Court even cites an earlier case acknowledging that the “totality approach” allows the state to prosecute drunk drivers “under a much greater variety of situations – for example, even when the vehicle is off the road with the engine not running.” Great. No matter how hard the courts try to convince themselves it isn’t true, the goal of all this is to ensure that every impaired person with access to a vehicle gets convicted of DUI.

The Supreme Court doesn’t even want a person’s purpose in controlling the vehicle to matter. The Court of Appeals thought the legislature intended to criminalize control of a vehicle when the circumstances “as actually physically exercised – demonstrate an ultimate purpose of placing the vehicle in motion or directing an influence over a vehicle in motion,” but the Supreme Court didn’t like that because it thought the facts determine whether a defendant exercises physical control of a vehicle. The opinion literally says an instruction telling a jury to consider the defendant’s purpose incorrectly states the law. I guess they’re fine with convicting people of DUI when they had no intention of driving.

Here’s the bottom line: there is nothing you can do to avoid getting a DUI. The goal is prohibition, not safety. Not driving won’t help you. Not drinking and not doing drugs may not even help you. While a DUI used to require the driver be impaired to the slightest degree, that doesn’t even matter anymore. You can get a DUI simply because of the content of your blood, regardless of whether or not you’re impaired. I’ve posted before about that too. Doesn’t anyone think it’s pretty ridiculous that someone can get convicted of driving under the influence for neither driving nor being under the influence?

The only good thing about Zaragoza is that the Supreme Court provides a new jury instruction that’s a little better than what we had before. Here it is: “[i]n determining whether the defendant was in actual physical control of the vehicle, you should consider the totality of the circumstances shown by the evidence and whether the defendant’s current or imminent control of the vehicle presented a real danger to [himself] [herself] or others at the time alleged.” Hopefully, now it’ll be a lot harder to get a DUI in a car that doesn’t work.

It’s sad when something so little in the midst of so much unfairness is the only glimmer of hope I get from our Supreme Court.