In Arizona state courts, far more so than in federal court, the disclosure rules are quite extensive. The state must comply with all kinds of requirements as the case proceeds. At the arraignment, it must turn over all law enforcement reports as well as the names and addresses of experts and the results of completed physical examinations, scientific tests, experiments, or comparisons. Within 30 days after that, the state must provide the defense with pretty much every piece of information or evidence it would need to assess the case. Other less-important disclosure deadlines continue to occur more or less right up to trial, but the important stuff comes out early in the process. There are even rules providing for sanctions, though the sanctions, like preclusion, are used less frequently by courts than they should be. There’s plenty to complain about with Arizona’s system, but I must admit the discovery rules aren’t bad.

The rules, however, don’t just apply to the state. There’s a whole list of things a defendant must do upon the state’s request. The defense has its own primary disclosure to make, more or less a mirror of the state’s primary disclosure, and it’s due 10 days after the state’s disclosure or 40 days after arraignment, whichever comes first. By that deadline, the defense must provide its notice of defenses in writing, specifying all defenses the defendant intends to present at trial.

Your disclosure statement probably says you reserve the right to supplement any part of your disclosure up to and including the day of trial, but if you spring an alibi defense and accompanying witness list on the state on the eve of trial, you’re probably going to have a problem. You might end up a test case for preclusion, or more likely, you’ll end up looking at a bar complaint.

Everyone knows our clients sometimes love eleventh-hour surprise witnesses and mad scrambles before trial to gather new evidence. The system will generally admonish them for a little trickery, but not much more. When the lawyer sits on the information and fails to disclose it for no reason other than to avoid tipping his or her hand, the system isn’t nearly as kind. There will be repercussions.

Knowing just how much and when to disclose is an important part of a criminal defense lawyer’s role. It must happen within the framework of the rules, however. No matter how exciting it might be if it was, this isn’t TV drama. The Arizona criminal justice system is not brought to you by Dick Wolf. I don’t have to spoon feed my defense to the state or give the prosecutor a written draft of my intended opening statement at trial, but I can’t engage in dramatic trickery when it comes to the content of the defense.

If more people understood that, I think I’d hear a lot less about the importance of not tipping our hand.

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.

The first path involves Arizona’s defense of “guilty except insane.” I have never practiced in another state, but I can’t imagine a tougher, more restrictive approach to dealing with defendants whose actions were a result of their mental illness.

To get a finding of guilty except insane, the defendant’s problem must be “severe” and prevent him from discerning right from wrong. We aren’t talking about your normal severe mental illness either. Anything that’s momentary, temporary, or arising from the pressure of the circumstances doesn’t count. Neither does moral decadence, depravity, or passion growing out of anger, jealousy, revenge, hatred or any other motives that may be present in a person who does not suffer from a mental disease or defect. Nothing resulting from acute voluntary intoxication or withdrawal from drugs or alcohol, character defects, psychosexual disorders, or impulse control disorders is going to fly.

Assuming he or she has a qualifying mental disease, a defendant must prove his insanity by “clear and convincing evidence” On top of that, if a defendant is found guilty except insane, he or she will most likely be sentenced to a presumptive prison term anyway, though he or she will serve it in a state mental health hospital instead of in the department of corrections .

There’s very little reason for a mentally ill defendant to use a guilty except insane “defense” in Arizona, as the best case scenario could result in a term of commitment greater than what the person might have served had he or she simply pled guilty to all charges. Sadly, the other path Arizona’s mentally ill defendant’s can take is not much better.

The second path involves determining whether a mentally ill defendant is fit to stand trial. Like with a guilty except insane finding, although I have never practiced in another state, I can’t imagine a tougher, more restrictive approach to dealing with incompetent defendants.

Rule 11 of our rules of criminal procedure covers competency to stand trial, so lawyers usually refer to competency proceedings using the name of the rule. If I have concerns about the competence of a client, I simply request a Rule 11 evaluation. The issue is going to boil down to whether the defendant is able to understand the nature of the prosecution and assist in preparing his or her defense.

The most superficial, childlike statements often satisfy Arizona’s standards. When asked about the rolls of defense counsel, prosecutor and judge, one of my clients said “the prosecutor puts me in jail, Matt gets me out of jail, and the judge wears a robe.” Totally competent, according to the court.

If a defendant is found competent, the time they spent getting evaluated is waived. That means they can be forced to wait longer for trial, even if they are in custody, because their lawyer requested an evaluation.

If someone is found incompetent, they aren’t released. In some instances, the state agrees to drop the charges, but that isn’t the norm. Typically, the next step is based on the likelihood of restoration, as the court must also decide if the defendant is restorable to competence within the statutory period. If they aren’t, the state will usually file for civil commitment. If they are, they get to participate in a restoration program. When they’re done with the program, which can last a while, they get sent right back to the trial court level, where adjudication resumes.

As you can probably see, Arizona’s system is a trap for the mentally ill. If they’re in custody, they almost always stay in custody much longer than they would if they did not have mental health problems. There is rarely any real benefit for someone who is mentally ill to proceed with competency proceedings or try to obtain a verdict of guilty except insane.

I’ve had a few cases where the previous lawyer had filed a Rule 11 evaluation for an in-custody client, and the matter was set for review of competency. When I got the file, I saw that the person had a plea offer to probation with no additional jail and was in on a bond of a few hundred dollars, which they couldn’t post because they were homeless and mentally ill. The reports came back saying incompetent but restorable, so the client had to hang around jail for months to get restored and kicked right back to the trial court, where they may or may not have still had the probation offer they could have accepted months earlier if they weren’t mentally ill.

It doesn’t seem right filing a rule 11 motion knowing that in all likelihood the client might spend half a year in jail just to get right back to the point in the case where they were the day you filed for the competency evaluation. Unsurprisingly, most mentally ill clients won’t appreciate it when you tell them they should be happy because they were previously incompetent and you’ve protected their rights by making sure they spent lots of time in jail getting restored.

It’s not right to plead out an incompetent client either. The reality is that, when pleading means getting out and competency means staying in, they all want to plead.

Great system, eh?

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.

I don’t like the county attorney’s policy, but it isn’t the worst. Not by a long shot. My vote is for the City of Mesa Prosecutor’s Office, which charges $5.00 for its mandatory, automatic disclosure pursuant Rule 15.1 of the Arizona Rules of Criminal Procedure. Rule 15.1 lists a lot of discovery that a prosecutor “shall make available” to a defendant. The list isn’t short, and it includes the police reports. Because Mesa Municipal is a misdemeanor jurisdiction, pretty much everything is due by the first pretrial conference.

When you show up at your first pretrial in Mesa, the prosecutors will let you look at the disclosure, including the police reports, but they won’t let you take it, copy it, and return it. Is that really making it available? You can beg and plead, but they’re going to insist on getting $5.00 before you can have a copy of your own. The policies written on the office’s discovery notice itself confirm that the only way to get a copy is to pay up. The notice also explains that they charge an additional $0.10 per page for other mandatory disclosure items like police reports for sentence aggravation, HGN and DRE logs and manuals, FST manuals, alco-sensor logs, and Intoxilyzer calibration logs and manuals. They exhibit a characteristic lack of humor when you try to opt for $0.10 per page for the initial disclosure instead of the flat fee of $5.00. I think they don’t like counting pages.

By requiring that defendants pay them for copies, the city prosecutor is pretty clearly violating the plain language of Rule 15.1. I can’t see how their policy could possibly be permissible under a rule that says “shall make available.” Is it okay because they’re only charging $5.00? Would it still be “available” if they charged $500.00? How much would they have to charge before it becomes a problem? What if they didn’t give out copies, but just let defense lawyers read the report and take notes? The rule used to say “for examination and reproduction” in relevant part, which would have made Mesa’s conduct even more outrageous (and they did it back then too), but I can’t find any legislative history suggesting the change was intended to allow prosecutors to limit the scope of availability. How can they possibly read the rule to require anything other than what they refuse to do?

Additionally, it seems obvious to me that city prosecutors are violating the Article 2, Section 24 of the Arizona Constitution. The Arizona Consitution provides a guarantee against being compelled to advance money or fees to secure constitutional rights, and Arizonans have a constitutional right to a copy of the nature and cause of the accusation against them. I think the word “copy” implies a reproduction of something in writing. The words “cause of the accusation” mean something more than just the broad language of the indictment, right? I read the consitution as giving defendants a constitutional right to a copy of the police report. They therefore have a constitutional right not to be compelled to pay for it. Do any of you disagree? Again, how can the City of Mesa possibly think that what they’re doing is acceptable?

Unfortunately, I suspect the city doesn’t care if what it’s doing is okay because it doesn’t have to care. Defense attorneys have been filing motions arguing these points for years. I’ve seen a motion as old as 2002. Who’s going to appeal over a $5.00 discovery fee? Maybe a judge will occasionally grant a defendant’s motion by compelling a prosecutor to provide the report free of charge, but I seriously doubt a judge is going to dismiss the case. Is saving $5.00 worth the lawyer’s time? Certainly not if the lawyer is being paid by the hour. If one defendant wins one case, who’s going to stop the prosecutors from violating the rule in every other case? The court isn’t going to issue some kind of standing order. The city’s discovery fee probably brings in a decent amount of money each year. Who cares about one tiny little profitable, illegal policy?

In criminal defense, the state often doesn’t have to follow the rules when enforcing them. The law is what judges say it is. In Mesa, I’m guessing that the prosecutors either don’t care what the judges say and the judges look the other way, or the judges just ignore the rules altogether. I think both situations are equally plausible. In fact, years of a terrible policy suggest to me that the one of those options is almost certainly the case. It doesn’t leave me with a good feeling.

The law allows some serious injustice to take place as long as it isn’t the state’s fault. A victim can wait as long as he or she pleases before going to authorities, and as long as there’s no reason the state should have known earlier, charges can go forward. What would stop a victim from waiting until key defense witnesses die before coming forward? Why not wait until the defendant has more to lose and is likely to take a plea?

Also, why not wait until the defendant has more personal assets? A victim could potentially use Arizona’s criminal statute of limitations to extend the time for filing a civil suit based on the same conduct. While a victim would normally have to file a civil claim in a relatively short window of time after being wronged, a special law extends the civil statute of limitations for one year after the final disposition of a criminal proceeding arising from the same conduct. If a victim misses the civil statute of limitations, why not go to the police and get a criminal case started? The victim will then have a year after that’s done to file a civil suit.

Arizona courts claim statutes of limitations are designed primarily to protect the accused from the burden of defending himself or herself against charges of long completed misconduct. If that really is the purpose, it shouldn’t matter whether the delay is caused by the state or the victim.

It seems clear enough. If I file a motion after the deadline, unless I didn’t previously know the basis for that motion, no matter how valid it might be, it will be precluded pretty much every time. However, prosecutors regularly do not bother responding to valid defense motions. Instead of precluding any objection by the state as not timely filed and granting the motion, trial courts almost always look into the issue on their own and deny the motion on grounds the state never argued. Often, I can’t believe how far courts have to go on their own to find reasons to deny a motion the state ignored.

I understand why a court might want to avoid throwing out a case because a prosecutor didn’t respond to a baseless motion to suppress or dismiss, but I can’t fathom why a court would go out of its way to find reasons to deny a valid motion to which the state didn’t (and maybe even couldn’t in good faith) respond. Although most of the defense attorneys with whom I’ve discussed this issue do not bother making a rule 16 preclusion argument, they have all acknowledged that the plain text of rule 16 requires preclusion. I’ve even spoken with prosecutors who track response deadlines with special care because they fear they will be precluded from objecting. While it’s nice to know that some prosecutors try to follow the rules, it doesn’t change the fact that, from what I can tell, they don’t have to. What is the point of giving the state a deadline if it isn’t going to be enforced? Sometimes, the trial court might even do their job for them.

The judges who require some change to the plea are usually adamant about the fact that using the same plea again constitutes “judge shopping” and isn’t allowed. I’ve yet to figure out whether there is in fact a rule against it in the context of a rejected plea. In fact, the part of the general rule that arguably prohibits changing judges to gain an advantage or avoid a disadvantage specifically states it does not apply to automatics changes of judge after a withdrawn plea.

I can think of a number of cases that use the term disapprovingly, but I know of no case that expressly forbids it. I even remember reading a death penalty case where the opinion plainly states that the defendant’s lawyer was judge shopping. Obviously, judge shopping may waste judicial resources and create tension between judges, but most of the time the judges who require a change to the plea are more than happy to accept a plea with a very minor change. Wouldn’t all of the problems with judge shopping still be present when that happens?

At every step of a case, I tend to look at the governing statue or rule whenever there might be a deadline or a specific way of doing something. That’s my policy no matter how well I think I know what to do, and it normally gives me a great deal of confidence that I am doing everything correctly. Unfortunately, it occasionally results in strange looks.

In a situation where I know the rule and would be violating it by following unwritten standard practice, should I stick to what’s written or follow the crowd? Personally, I can’t imagine ignoring an applicable rule, no matter how inexperienced full compliance makes me look.