I recently tried a case with her because the state wouldn’t budge one bit on the plea. My client faces the exact same thing right now having lost at trial that he would’ve gotten had he accepted the state’s offer. After three motions, a long evidentiary hearing, various oral arguments, a bunch of interviews, and a hard-fought jury trial, he may arguably be better off having been convicted by a jury than he would’ve been rolling over near the beginning. The case is set for a hearing during which the state must prove my client’s alleged prior conviction in order to enhance his sentence.

The prosecutor informed me that the prints the case agent took from my client before trial matched the prints for the prior conviction. She asked me to stipulate it was his prior. “Begged” might be the better word, actually. Small violins seemed to play sad songs in her head as she told me how the officers would have to come in and waste an afternoon. She stressed how the court is already backlogged. I didn’t care, of course.

I would be lying if I denied deriving a wonderful sense of satisfaction from her torment. In the beginning of the case, I’d worked my ass off trying to negotiate a non-trial resolution that was in my client’s best interest. She took one brief look at the case and told me she would win it. The law provided for a 120-day sentence for my client, and she told me she would get that when she won at trial. She would give my client the privilege of admitting to everything, making her life easier, and getting what she felt he deserved without having actually considered his personal circumstances and the issues with the case. She wouldn’t shave one second off the jail sentence. She was an inflexible bully.

I told her we would be going forward with the hearing on the prior. I informed her there will also be an appeal after that, at the very least, and very likely post-conviction proceedings. My client is a fighter. Because of her office’s shortsightedness, she put him in a situation where he had nothing to lose going down swinging. He’ll be swinging for years. My client has a right to a priors trial during which the state bears the burden of proof. He elected to exercise his rights because her office elected to play stupid political games with people’s lives.

It felt good to see the tables turned, but it was disappointing that she didn’t exhibit the least bit of understanding. The problem was that she believed she was in the right. She is the good guy. Anyone unlucky enough to find his name in a police report is the bad guy. Asking her to give my client a minor concession was an unreasonable request. Denying her demand for him to waive his life away to make her easy life a tiny bit easier was unforgivable.

Like she told me in the beginning, she isn’t the one who drank too much before hopping on a motor scooter. She’s the one who’s stealing a huge chunk of that guy’s money, stripping him of his driver’s license and therefore his ability to earn a living, forcing him to go through classes and counseling he probably doesn’t need, and sticking him in a cage for four months. See? She’s the good guy, obviously. She’s righteous. He’s an icky defendant. Why won’t he just accept what she thinks he should get?

Give nothing, expect everything. That’s how the game works to them.

Most lawyers and judges are not scientific-minded individuals. They view scientific tests and scientific analysis the way that many religious people view their deity. They don’t understand it, but they have faith in it. When things come up that might challenge their beliefs, they stick their heads in the sand. They are absolutely certain that what they believe is correct no matter how much evidence there may be to the contrary. Obvious flaws in their beliefs are just anomalies. They trust whatever they believe, ignore evidence to the contrary, and don’t think too hard about any of it. As frustrating as it may be dealing with that mindset from prosecutors and judges as a defense lawyer, most DUI cases are tried before juries. I’ve found that DUI juries with scientists and doctors on them tend to acquit even when the state’s case seems strong. I’m never surprised when that happens.

A serious problem arises when the court prevents the jury from hearing important information that might call into question the reliability of the scientific testing in a case. It isn’t like that physician or scientist juror is going to just assume there’s a problem without any evidence of one, and judges are frequently all too willing to preclude important information about the testing equipment and methods. They claim there’s no evidence there had been an error in this case. Judges demand an offer of proof from the defense before they’re willing to admit evidence of the countless other errors the machine has made. Instead of making the state bear the burden of proving the test was accurate and admitting all of the information that might cast doubt on its accuracy, judges regularly presume the results are accurate and preclude any information to the contrary.

Take the software some jurisdictions use to view and print gas chromatography–mass spectrometry results in DUI cases, for instance. Interviewing different state experts, they’ve all admitted to me that there are numerous issues with the software. They describe different instances in which the software has mixed up samples. They claim they’re “clerical” errors and not “analytical” ones, but the errors caused incorrect results nonetheless. Moreover, the state never corrected the cause of those errors. Instead, the people performing the tests just tested the samples in a slightly different manner that seemed to fix the problem. Not a single person working for the crime lab can say why the software made the mistake, as none of them know the first thing about computer programming. The state can’t produce a single witness who can testify the issues the state never bothered fixing might be causing problems in other areas as well. Good luck finding a judge who will let you ask the state’s expert about software problems. Without an offer of proof about a known software problem in your exact case, the jury never gets to hear about the fact the software screws up constantly in a variety of different areas.

Expect the government to push the boundaries of the leeway it has been given. I envision the state qualifying certain government employees to operate a Magic 8-Ball of guilt or innocence. Specially trained officers, let’s call them “culpabilitists,” learn the highly scientific principles behind the device, and they call it something cool, like the “M8B.” They claim cops have tested it all over, that the theories behind it have been subjected to peer review and publication by cops worldwide, that there is no known or potential error of the technique or theory of the M8B, and that cops the world over generally accept it as the ultimate arbiter of guilt or innocence. Courts will let it in, though the defense attorneys will protest like we always do. We’ll argue it’s just a toy that officers shake. We’ll point out that its results are random and that, with most M8B devices, every single side of the die floating inside says “guilty.” The court will shoot us down while explaining how the science is well-settled. The culpabilitist said so, after all. The judge will look down from his podium and say to the defense, “do you have an offer of proof that the device in this particular case did not produce an accurate result?”

I kid, of course, but the government’s abuse of science and the courts’ complicity in it are no laughing matter. Although the tests the state uses to convict people of DUI are for the most part more reliable than a fortune-telling children’s toy, courts rely so blindly on flawed science and strive so hard to avoid anything that might give rise to reasonable doubts about the state’s test results that even the most deeply flawed equipment, methods, and software can achieve a criminal conviction with remarkable ease. When a person’s life hinges on science in the hands of a government that’s happy to abuse it, it’s easy to slide down a very slippery slope. That’s exactly what we’re doing. If we continue, maybe the M8B isn’t too far away.

The courts fuss and fume when you need an extra week or two to make a decision. They push you into whatever plea comes your way.

In Phoenix City Court, you usually spend the pretrial stages in front of a single judge. After you decide to fight it, though, they shuffle you elsewhere. The order says you’ll be going to trial in thirty days, but the court struggles to get you in front of a judge in sixty. You won’t know which judge you’ll get for fifty-nine.

When everyone assumed you’d plead, they rushed you to a decision. After they realized you were going to fight, they stretched it out as long as possible. It’s even a battle to get a judge to hold a motion hearing prior to trial.

Imagine you have one heck of a suppression issue. The cops obviously needed a warrant and didn’t get one, or they got one but it didn’t authorize what they did. It’s the awesome kind of issue defense attorneys crave, the kind of issue that makes motion drafting a true pleasure. I’d call it a slam dunk if it weren’t for the fact courts will do almost anything to avoid letting you “get away” with whatever some cop mistakenly thought you might have done.

No motion hearing for you! Not in Phoenix, at least. The motion hearing happens on the morning of trial while the jury waits below. There’s no pressure to deny the motion and give the jurors something to do, of course.

The court doesn’t care that you will have to pay thousands of dollars to retain an expert witness for trial in a case that should be dismissed based on well-settled law and undisputed facts. That’s your fault for putting yourself in a situation where you got yourself accused. The court doesn’t care that the state wouldn’t offer you a plea that conveyed some sort of discernible benefit. The blame again falls on you, the potentially innocent defendant who was unwilling to accept responsibility against your own self interest. The court doesn’t even care that this is a twenty-witness trial and there’s no time to hold an evidentiary hearing prior to trial. The judge will just yell at your defense lawyer when he asks for trial to continue into a second day.

You’re a beast of burden being pushed to your cruel fate. That’s the way the system works, and the idea is familiar…

Move ‘em on, head ‘em up
Head ‘em up, move ‘em out,
Move ‘em on, head ‘em out Rawhide!
Set ‘em out, ride ‘em in
Ride ‘em in, let ‘em out,
Cut ‘em out, ride ‘em in Rawhide.

I just wonder why Chris has hired someone to go find lawyers and try to sell himself on their blogs. Can’t he send his own email, or “call directly?” Where’s the “personal service” Chris. Chris?

That highlights a fascinating phenomenon that would probably be easiest to explain with some examples.

I know a lawyer who sucks. Okay, I know a bunch of lawyers who suck. They never answer their phones. They never respond to emails. They can’t even be bothered to respond to a desperate text for a call with a simple “LOL I’m ignoring you because I’m drunk in Vegas.” When I finally get so desperate to contact them that I resort to mailing a letter, I might as well have written Santa Claus at the North Pole requesting a Ferrari for the Fourth of July.

Those same lawyers have no money, but they always seem overworked and burnt out. They ask silly questions about how I find business, yet they represent more people in any given week than I represent in any given year. It’s very confusing.

Luckily, I also know a bunch of lawyers who are awesome. Several of them probably made more money this week than I’ve made in my entire career. They are all brilliant and hard-working.

Strangely, although they all differ greatly in what they do, they are all easy to reach. Most of them have staff, but I wouldn’t have ever noticed unless I’d really paid attention. When I call, they pick up. When I email, they respond. I never worry about them ignoring me, just as I’d never worry about them ignoring any of their clients.

The general public seems to think there should be some kind of mystique about lawyers. When it comes to availability, that’s bullshit. Unless a client is making plainly unreasonable demands regarding his lawyer’s time, the lawyer should always respond to everything. A phone tree that leads nowhere doesn’t make me impressed by how important a lawyer must be. It makes me vow to never send a case his way because he’s hard to reach.

One of the most famous trial lawyers in this state picks up his own phone when people call. So does a lawyer who holds more records for huge civil verdicts than I could count on my fingers and toes as well as a lawyer who runs a major public defense agency. So should everyone. What the hell are these struggling lawyers who can’t be bothered to do any work themselves doing with all of their time?

Unavailability does not equate to skill or prestige. It equates to more unavailability, a quality that few people seek in a prospective attorney.

I know that Scott Greenfield made the comment that, “if you’re going to screw up and have links from one attorney go to another, can you at least link Matt’s website to some really good lawyers rather than losers?” If you thought he was serious, I do appreciate that you found us Arizona’s most well-known attorney, a Harvard Law School grad with forty years of experience who has served as a judge, as the state superintendent of schools, and in the state legislature, but your time would have been better spent poking around Simple Justice and reading some of Scott’s posts. He’s a funny guy, and I’m pretty sure his comment here was in jest.

Sadly, the problem doesn’t stop with the incoming link, as we keep getting emails asking us to view Mr. Horne’s profile. The emails also provide a link to claim it. As endless and humorous as the possibilities might be if a couple of defense lawyers claimed the Avvo profile of the chief legal officer of the state of Arizona, Adrian and I have far better things to do with our time. I imagine there might be a few ethical problems with that as well.

Is it too much to just ask you to leave us alone? We haven’t bothered claiming our own profiles, and I’m doubtful Mr. Horne wants us to claim his. Although other lawyers may think Avvo is the bee’s knees, it just isn’t our cup of tea. If you’d stop the emails and remove the links, we’d be thankful. I bet Mr. Horne would be too.

Sincerely,
Matt

Here is the scientist’s paper, which is both clear and convincing. The guy is obviously well-educated and articulate, and based on his analysis, it’s tough to disagree with his conclusion that the officer’s perception of reality did not properly reflect reality. After reading the paper and assuming the officer only had his faulty perception on which to base the ticket, no fair judge could reasonably hold the scientist responsible for the alleged violation. The appeal should have succeeded because it had merit. Had it failed, it would have been a glaringly obvious miscarriage of justice.

News media here in Arizona always seems eager to shill for authority, something their bad reporting frequently puts on display. The scientist in yesterday’s article was accused of something for which there existed no reliable evidence. He had the training and intelligence to communicate that, and he prevailed. The media, however, didn’t report on the dismissal of a bogus charge or the failings of a system that didn’t get it right until appeal. Instead, it wrote that he was able to “dodge” and “argue his way out of” the ticket, like he somehow got away something. The fact most people around here get their news from an outlet with such obvious bias toward government should be cause for concern.

H/T Xochitl

My friend is about my age, and we’ve been practicing for about the same amount of time. He’s done nothing but criminal defense, just like me, but when Adrian and I were hanging our shingle, he was starting work at the county public defender. He gained some incredible experience, and he’s a great lawyer. He recently started his own firm. I try to send him cases when I can because I trust him to do a good job. He’s proven me right.

My friend wasn’t sure how to deal with his online critic, and sadly, I was very little help. For a while, almost every hit on Google for my name went to pages elsewhere criticizing various things I wrote based on my inexperience. The most popular pages on my own blog were ones that were peppered with comments mocking me for being green, and a few internet crazies actually took the time to put up their own websites discussing how much they thought I sucked. I was once in truly impressive company when I made the cut for some sort of Asshat Lawyer Twitter list. Oddly enough, that may be the most elite group of talented individuals in which anyone has ever thought to include me. I was quite flattered.

Looking around now, all of that appears to be gone. Some of my critics couldn’t afford to keep their sites up, it seems, while others just lost interest. No one really hit below the belt, so I didn’t really care at the time. I ignored it, and it went away. I’m lucky in that respect. Weirdo detractors come in all shapes and sizes. Mine were small and gave up easily. I never had any motivation to learn how to deal with online critics due to a combination of good fortune and an intense workload that stopped me from dwelling on it. Basically, I’m the last person to ask for the advice my friend wanted, something that came through quite clearly when I couldn’t offer him anything particularly helpful.

What’s interesting to me isn’t the solution, which I don’t know, but what the whole situation says about the nature of lawyer marketing on the internet. You see, I can put up a page about all my accomplishments whether I have any or not. With a little money and a whole bunch of free time, I could probably become the best lawyer on the internet. I could probably become the best neurosurgeon on the internet too. It doesn’t really matter that I’m not a doctor and don’t know the first thing about the nervous system or medicine at all. I can build any online reputation I want, and my puffery and white noise will probably edge out lots of the genuine article in search engine results.

Luckily, online hype is mostly powerful online. That’s a good thing. What we obtain too cheap, we esteem too lightly. Here, that’s a good thing too. Dollar for dollar, few things are as cheap as an online reputation, and even the lightest esteem is probably too much to give it. Unless it’s the product of real work in the real world spilling over into the internet or it’s the result of a truly valuable contribution to the world that happens to be made online, it’s pretty much meaningless.

The flip side is that what the internet can giveth the internet can taketh away, and that’s just as important. What you can achieve online without discipline and hard work can also be taken from you without discipline and hard work. It’s a pretty agreeable symmetry, in my opinion, as it appropriately cheapens the value of an online reputation. Though it may be unfortunate that good people are frequently tarnished online by n’er do wells, good people are far more than just their internet personas.

An online attack doesn’t change the fact my friend is a good lawyer who serves his clients well. The potential new clients who look elsewhere because of a poorly written diatribe exposing a former client’s unreasonable expectations and inability to judge good legal work are the same kind of potential new clients with a high likelihood of one day becoming former clients posting poorly written diatribes exposing their unreasonable expectations and inability to judge good legal work.

If you’re an internet lawyer, internet problems are a big deal. My friend is a real lawyer though, so he really shouldn’t care. That was the inarticulate advice I tried to give him. I hope it made sense.

In the opinion, the court said that aggravated DUI, which means DUI with a suspended license, does not contain the lesser offense of driving on a suspended license. The court’s reasoning was that aggravated DUI does not require proof of actual driving and can be committed anywhere within the state, but driving on a suspended license requires driving and has to occur on a public highway. I have no clue how anyone can put that on paper without developing serious concerns about the abominable DUI laws in this state and the obvious impending push toward prohibition through them, but they do always seem to figure out some way to surprise me. The absurdity of the situation speaks for itself just reading the opinion.

What is also interesting is the fact I didn’t know about the opinion until last weekend. It’s because of a phenomenon most people would not expect. I’ve handled plenty aggravated DUI cases, but I’ve never really met anyone who agrees his license was suspended but denies driving drunk. On the other hand, I regularly have clients who want to fight their aggravated DUI cases with the argument that they committed DUI but had no clue their license was suspended. It’s the opposite of what I would have expected, and it was pretty funny hearing it from a client the first time: “oh yeah, I was totally cruisin’ around wasted, but dammit my license was totally valid.”

Oddly enough, it can be a pretty solid defense. Juries tend to think they’re just throwing the defendant a tiny little bone by finding him not guilty of the suspended license DUI count. They don’t realize that, in many cases, that’s the count that is a pretty serious felony and carries four months of actual prison. The similarly scary sounding regular DUI count is often just a misdemeanor carrying a penalty of one day of jail.

That defense also led to one of the best defense-lawyer questions I’ve heard of in a trial. After lengthy testimony from the state’s expert about gas chromatography-mass spectometry and the testing equipment, the defense lawyer stood up an asked a single question, “so does that thingamawhatsit tell you if my client knew his license was suspended?”

I suppose it’s good we can laugh a little. With the laws we have, otherwise, we’d be doing a whole lot of crying.

H/T Andrew (the other one)

We, like the public, began uninformed. We are now fully informed. We are fully decided in our opinion. The evidence is overwhelming against Respondents. We hope the openness in which these proceedings were held will help restore the public’s faith in our legal institutions and deter attorneys from similar misbehavior. The purpose of attorney discipline is to maintain the integrity of the profession in the eyes of the public, protect the public from unethical or incompetent lawyers, and deter other lawyers from engaging in illegal or unprofessional conduct.

Sadly, their own individual basic mistrust of others, when combined together, became multiplied by dishonesty, an abuse of power and a remarkable willingness to spend the public’s money for their
cause célèbre. The aggravating factors devastate the mitigating factors. We find they knew they had no evidence and prosecuted people anyway. There was no “noble cause.” There was only self–interest. The harm done to the public, individuals, and the profession was stunning on every front.

As thrilled as I should be seeing a tyrant brought to justice, I find myself feeling a bit uneasy about what happened. Instead of seeing this as a move in the right direction, I worry it’s too unique a set of circumstances to make any real difference. I’m concerned that Arizona’s attorney discipline system may ensure justice is done, in this case at least, but that it’ll just be business as usual in the criminal courts.

I remember when Judge O’Neil used to be a Pinal County Superior Court judge. He’s an incredibly charismatic person, and when he was on the bench, watching him do settlement conferences in particular was truly a sight to behold. I used to joke that sometimes I’d be begging for him to let me plead guilty at the end too. He can be that persuasive.

Most settlement conferences would start out with him telling the defendant that he knows what every defendant wants: a dismissal. He’d look at the prosecutor and say sincerely, “will you please dismiss the case?” After a clear “no,” he’d tell the defendant, “sorry, I tried.”

He’d talk about how he was a true Pinal County native. He’d talk about growing up in the middle of nowhere, building a small town law practice and never losing a criminal case before deciding that type of law just wasn’t for him. He’d talk about his impressive credentials as a lawyer as well as a judge.

Then he’d talk about his dad, a small-town doctor who lived with his family out in the country. He’d talk about his brother and how they worked on the ranch instead of playing games like other kids. He’d tell a story about one day when he and his brother decided to do something that would give them a story that would impress their friends. They’d catch a rabbit with their bare hands. If they couldn’t play baseball all summer like most children, maybe that would show everyone else that they were athletic too.

He’d explain how his brother saw a rabbit and started chasing it. His brother ran and ran, and the rabbit suddenly jumped into a hole. His brother leaped onto the hole and quickly reached his hand down, but he didn’t pull out a pair of soft bunny ears. He looked down and saw the tail of a western diamondback rattlesnake. The snake bit his brother, he’d say with delivery worthy of an Oscar, and if his dad wasn’t a doctor, he’d wouldn’t have had a brother anymore.

After that engrossing story, he’d tell the defendant that everyone hopes to pull a rabbit out of the hole at trial. He’d tell the client about “some other fellas” who thought the same thing. There’d be guys who had offers to probation but got life in prison. There’d be guys who could’ve done five but got fifty. He’s no slouch when it comes to experience, so there was never a shortage of other defendants’ bad experiences in similar cases that he could relay to each defendant. The end result was almost always a plea.

In Andrew Thomas’s case, there obviously wasn’t a plea offer. It wasn’t a criminal case, and he wasn’t looking at prison for what he did. He only stood to lose his law license. There was no threat of rattlesnakes to make him give in, no coercive statutory scheme pressuring him to confess to the things he claims he didn’t do for fear of far worse sanctions. After the recommendation came down for disbarment, he had nothing to lose fighting the case. He had everything to gain.

Unlike the thousands and thousands of people prosecuted pursuant to his heavy-handed, unfair, and often ridiculous policies, Andrew Thomas had the largely risk-free ability to do everything within his power to defend himself. Not only wouldn’t he be taxed with extra punishment for asserting his rights, but he also wasn’t being prosecuted by disorganized foot soldiers with very little knowledge of their cases in a system that rushed him through with minimal personal attention. He had all the time in the world.

In stark contrast to Andrew Thomas’s day in court, I recently tried a complicated but admittedly minor criminal case in a misdemeanor jurisdiction. The court only gave me a small slot in the morning to do it. I filed motion after motion telling everyone the case was going to be time-consuming, but no one read them. I tried to make a record about how it needed special attention, but no one cared. When I showed up for trial wanting to argue motions, address issues, and devote the massive amount of time needed to do it right, everyone treated me like I was evil incarnate. How dare I thrust that upon them? It was a grueling uphill battle just to get a meaningful day in court.

The order moving back the Andrew Thomas decision until today really exemplifies the difference between people like my client and people like Andrew Thomas. My client could’ve gone to jail, but she was just one little person in a big, unfair system. Andrew Thomas only stood to lose his license, but he’s a big fish. He’s important, so his hearing took 26 days. There were 46 witnesses, and it cost a fortune. After two months of proceedings and 6,132 pages of admitted exhibits, he lost his license based on a beautifully-written, well-reasoned, 247-page ruling that carefully dismissed the counts for which there was not clear and convincing evidence while holding the respondents responsible for those for which there was. It was the kind of treatment every person in the legal system should receive. It’s the kind of treatment few do. For half a decade, it seemed to be Andrew Thomas’s mission that would be the case.

Andrew Thomas was free to fight, and fight he did. He’ll probably continue fighting with an appeal to the Supreme Court of Arizona. Andrew Thomas’s experience as an unwilling participant in the system was in an area where he stood to lose far less than the vast majority of the people his office prosecuted during his tenure, yet he was given time and attention that far above that which all but the luckiest of his victims received. Of course, as no one would have doubted, Andrew Thomas still didn’t agree with the ruling. According to one article, these were his words:

“Today corruption has won and justice has lost,” he said. “I brought corruption cases in good faith involving powerful people, and the political and legal establishment blatantly covered up and retaliated by targeting my law license. Arizona has some of the worst corruption in America, according to a recent national survey. The political witch hunt that’s just ended makes things worse by sending a chilling message to prosecutors: Those who take on the powerful will lose their livelihood.”

I’m no Andrew Thomas sympathizer. However, I think he stumbles across an interesting point. I have no doubt that he abused his power, but there’s no question he chose a number of very powerful people to be among his victims. In a few cases, he targeted the political and legal establishment, probably assuming he was powerful enough to do it and win. He was wrong, luckily, and his misdeeds eventually caught up to him. His predicted message may be close to reality, though. He should have just qualified it by specifying that those who unlawfully take on the powerful will lose their livelihood. Those who lawfully take on the powerful may succeed. Those who unlawfully take on the weak or downtrodden will probably thrive and get away with it indefinitely. It’s a shame, but it’s true.

People keep telling me I should be happy that Andrew Thomas was brought to justice, but I am not. I read the opinion and think about the situation, and all I take away is a sense of something akin to envy on behalf of the ordinary people caught up in the legal system. This may have all taken place in the context of bar disciplinary proceedings, but Andrew Thomas committed his violations as a top prosecutor in Maricopa County’s criminal courts. It would be exceedingly naive for anyone to think his most egregious violations of the ethics rules happened to be the ones committed against a presiding judges and some powerful politicians. Andrew Thomas wasn’t disbarred because he pledged to continue to try to send people to death row in record numbers in order to get himself reelected. He wasn’t disbarred because he ran his office according to policies that cause innocent people to plead guilty or because he fostered a culture of intolerance and incompetence. It was because he finally messed with someone capable of fighting back.

The last thing I want to do is to diminish what Andrew Thomas did to Judge Donahoe or any of the others named in the ruling. It was awful, and justice was done when their cases were thrown out. Justice was done when Andrew Thomas lost his license. However, most people in the system stand to lose their liberty, and the system doesn’t give them anything close to what Andrew Thomas received. They don’t have the power Andrew Thomas’s best-known victims have.

Andrew Thomas was accused of something, and he fought the accusations. He was given every opportunity to fight his case, and he was not punished for taking advantage of that. The people he prosecuted had no such luck, and I don’t just mean the ones who were vindicated in bar proceedings and fought back until they won. There are plenty of ones who are still sitting in prison cells right now because they aren’t important and they were either afraid of snakes or didn’t pull out the rabbit they wanted.

As much as I appreciate Judge O’Neil’s hope that that the openness in which the proceedings were held will help restore the public’s faith in Arizona’s legal institutions, that isn’t the best thing that could happen. In fact, it may be the worst. Andrew Thomas did not run the county attorney’s office in a vacuum. The people of Maricopa County elected him. He wouldn’t have been capable of doing what he did if the system was better.

This should be a catalyst for change. It should make us reconsider our priorities and change the system in which he was allowed to operate. If we can give him a fair shake like the one he got, don’t we owe the same to everyone? Justice was done, but there’s a lot more justice left to do. There’s injustice to undo as well.

I hope that’s the message people take away from this.

Whereas Scott expressed concerns about the law and its potential problems in his post, Jamison’s post wasn’t really about the law at all. He focused on how people shouldn’t pick unnecessary fights with police officers or bring stupid lawsuits. Discussing the plaintiff-lawyer’s decision to file suit instead of taking less drastic action, he writes, “[a]nd we wonder why people hate lawyers so much.” Jamison almost seems to praise the opinion, noting how it’s apparently fun to read and claiming there’s a reason federal judges and clerks did better in law school than he did. He cites these paragraphs of the opinion before ending with an exclamatory “ouch:”

[T]he challenge to the post-and-forfeit fails, although not for lack of trying. Plaintiff has now provided the Court with three different versions of a prolix complaint – each longer and more detailed than the one that came before. The matter has been briefed extensively, and the Court held a lengthy hearing. Yet plaintiff has yet to articulate just what it is that is wrong with offering someone charged with a minor offense the choice to contest the charge in court or to pay a small sum and go home.

The fundamental flaw at the heart of the plaintiff’s case is that while his papers are generously seasoned with strong language connoting wrongdoing – “force,” “coerce,” “exact,” “deprive,” and “take,” and the allegations all turn upon the city’s alleged policy of “making” arrestees pay money, there simply was no coercion, taking, or deprivation inherent in the voluntary exchange that was offered and accepted in this case. Moreover, plaintiff was fully apprised of, but elected to forego, his right to seek to set aside the forfeiture and contest the arrest.

I appreciate a good verbal bashing as much as the next guy, but only when it’s deserved. Here, I’m not impressed by the court’s way with words quite as much as I’m horrified that such a statute could exist. The opinion isn’t a righteous bench-slap against some unruly litigant, but rather a terrifying testament to the authoritarian path this country is following. There’s clearly no end to the willingness of the judiciary at all levels to justify coercive and even forceful deprivations of people’s rights so the government can efficiently take their money and exact sick institutional vengeance on them when they ruffle poor little cops’ feathers. Huh. Come to think of it, the plaintiff’s words seem pretty much perfect to me.

Curious, I found the entire opinion at the Blog of Legal Times. It sets forth facts that should make a criminal defense attorney’s blood boil. The lawyer-plaintiff is named “Mr. Fox,” and the opinion explains that he hurt the delicate sensibilities of some demure little flower of an officer by making a derogatory comment about the officer’s intelligence and competence in front of some of his little buddies. Being armed professionals sworn to serve and with a good sense of proportionality, they took a cautious approach and threw Mr. Fox in a cage. Mr. Fox was charged with something called “disorderly conduct – loud and boisterous” and watched another arrestee get hauled off to some scary place the officers called “Central Cellblock” after refusing to pay $35.00. After a few hours in the holding cell, Mr. Fox was given the same “choice,” as the court likes to call it, and he opted to pay the $35.00 ransom post-and-forfeit amount. He was given a form that explained the charged offense and indicated he was being offered the option to post-and-forfeit and that he would otherwise “not be released before [he was] presented to court on [the] charges.” Although the form described “release on bond” and “citation release” as possible alternatives, no one offered Mr. Fox either option. In all, Mr. Fox spent approximately nine hours in jail, which seems to me like quite the price for making someone who carries a gun and handcuffs for a living a little butthurt.

How any court can set forth those facts and rule the way the court in Mr. Fox’s case did is beyond me. Perhaps the most remarkable part of the opinion is the part where the court claims “[i]t is difficult to discern what Mr. Fox’s alleged injury is.” Really? Arrest? Cuffs? A holding cell? Nine hours in jail? Big scary cellies? His poor wife having to go down to the station to try to help him? People cry when they get stopped for going five miles over the speed limit. Other people faint when an officer pulls out handcuffs. Judge Jackson must be tough. Really tough. It’s quite impressive how casually she explains that “the facts as alleged show that he chose to post and forfeit the thirty five dollars – rather than proceed with his criminal case – in order to get out of jail more quickly and terminate his case, and that he was fully aware of his options.” I bet she wouldn’t care at all if she spent nine hours in a cell. She’s probably so tough that she’d demand more jail time to fully weigh her options, all the while feeling no pressure at all. I bet she’d spend months in jail rather than take the weakling’s option and fork over $35.00 for her liberty. Tough lady, that Judge Jackson. As she explains, “there is certainly no fundamental liberty interest in being released from jail before presentment the following morning.” Got that? Judge Jackson and all of her judge buddies do time all the time. What’s an extra several hours or a half day or so being treated like an animal?

Although I could probably go on indefinitely about all the things in the opinion that rub me the wrong way, a few things stood out. For one, the court explains that “[t]he long history of the post-and-forfeit process further weakens Mr. Fox’s substantive due process claim.” In other words, because the government has been doing something bad for a while, that makes it okay. It’s a great argument that I use on behalf of clients all the time. “Your honor, my client kidnaps and robs people every day, and no one ever does anything about it; you can’t just now decide to punish him!” Oh wait. Never mind. I never argue that because it’s ridiculous and would likely get me disbarred and maybe even tossed in the pokey with unfortunate folks like Mr. Fox. Anyway, the court explains how “[t]he Supreme Court has indicated that it approaches requests to strike down longstanding practices under the theory of substantive due process with skepticism.” Gotcha. I might have written it like this, though: “we’ve been demanding ransom for a while and the Supremes say things we’ve done for a while are okidokie so it’s all good.”

With regard to one of his substantive due process arguments, the court explains that, “contrary to Mr. Fox’s assertion, the procedure itself is not rendered constitutionally infirm for substantive due process purposes simply because some of the people who choose to pay the money may have been arrested without probable cause.” There she goes again with the whole “choose” thing. The opinion states, “[t]he risk of an erroneous deprivation is one of the factors that the Court weighs in the procedural due process inquiry, not the substantive due process inquiry.” This is a classic way for courts to get around the fact the system does truly awful things to innocent people. Re-categorize! Who cares if innocent people are incarcerated? Lawyers need to know the difference between substantive and procedural due process.

In the court’s defense, however, at least it addresses the point in the section where it felt it belonged. With regard to Mr. Fox’s procedural due process argument, the court explains, “the post-and-forfeit procedure is adequate to satisfy procedural due process concerns.” Mr. Fox apparently hadn’t alleged the law violated any “fundamental principle of justice,” as the court doesn’t see anything unfair “about being given the choice to pay a reasonable fine to resolve the charge of a petty offense, particularly where the payer has ninety days to think it over and change his mind, and the payment, once final, does not result in a record of conviction.” The emphasis is mine, not the court’s, and that quote shows that, in the end, it all comes back to the fact the court thinks it’s a choice. Our government is run by tough people like Judge Jackson who view the choice of whether to rot in jail or not rot in jail as a meaningful one when the cost is only $35.00. No wonder I’ve never worked for the government; I’m just not tough enough.

Finally, as that last quote suggested, the court really seems focused on the fact Mr. Fox didn’t ask to have the forfeiture set aside by the Superior Court of the District of Columbia despite the fact he had ninety days to do so. If people with guns kidnapped me for being a hurtful meanie to one of them and then released me in exchange for some cash, I certainly wouldn’t be champing at the bit to become involved with my captors again. I wouldn’t want to play their game. I would want to try to empower myself. I would want to strike back and make sure no one else has to endure what I did. Maybe I’d do something pretty close to what Mr. Fox did, and I might even employ some words that are stronger than “force,” “coerce,” “exact,” “deprive,” and “take” in the process. Sadly, though, I’m just a little cream puff. Tough judges would probably see right through my arguments and shoot me down because life and liberty mean nothing to them. Silly me. I suppose I’d just hope that Jamison might feel a little sympathy for me. That seems like something Mr. Fox doesn’t have, though I really can’t understand why.