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Somebody Must Have Read Catch-22

A member of the East Valley DUI Stasi Task Force apparently decided to park himself outside of a local bar one night last year. According to at least one witness, the cop then proceeded to stop one person after another for neither a traffic violation nor on reasonable suspicion of impaired driving. He was basically a one-man DUI checkpoint at the exit of a local bar, they said. My client, who was stopped that night by that officer at that location for a traffic violation he denies committing, wanted to prove what the officer was doing.

In most of my DUI cases, I find that clients don’t complain much about the stop. On the other hand, I don’t believe I’ve ever encountered a stop made by an officer working as part of a “task force” where there wasn’t something suspicious. My client and I wanted the other police reports for the officer in question and the task force generally so we could prove the pattern. After over seven years of hearing the same exact thing from client after client, eyewitness after eyewitness, and even having been personally stopped for no reason on a heavy task force enforcement night by an officer who said it was for some traffic violation but let me go without even warning after realizing I hadn’t had a thing to drink, I file motions to compel disclosure of all related reports in most of my task force cases. Of course, I almost never win.

The officers always insist there was a violation. The state always calls it a fishing expedition. Judges make their best concerned faces. Then, they do whatever it takes to push the case to a DUI conviction as quickly and with as little effort as possible. In my client’s case, the court came up with an amazing new approach guaranteed to shut down any such defense request in the future. The ruling was simple:

The motion to compel is denied as defendant has failed to establish that the evidence sought is plainly exculpatory.

We believed the reports might be exculpatory. We had evidence supporting that belief. We could not get the reports, however, because police records required the name of the suspect to obtain a police report and we only knew the name of the officer and the campaign. Indeed, there was no dispute that we had no other way to get the reports in question, yet according to the court, we could not get the reports and then view their contents because we could not prove their contents, which would require already having the reports.

It was almost so brilliantly frustrating and unfair that it was hard to be angry. Almost.

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2 Responses to "Somebody Must Have Read Catch-22"

  1. Three thoughts.

    First, Arizona has, I presume, a public-information or open-records act. Patrol cars have GPS. GPS records are kept. With GPS records you find out what cars frequent the area. Then you find out who was using those cars. Then maybe you can get a list of cases filed and tickets written, and get police reports on those cases.

    Second, Tempe has, I presume, a criminal-defense bar. Ask them to get their acts together and share any information they get about such arrests.

    Third, there are lots of Catches-22 in criminal law. For example to prove spoliation you have to show that the evidence would have been exculpatory.

    1. Matt Brown says:

      I’ve had some success with public records requests. On the other hand, I’ve had almost no success coordinating with defense attorneys en masse about things like this. There are so many good lawyers here that it makes the lack of any really effective pooling of our resources extra disappointing. Even the listservs seem to devolve into not much more than a place to brag about wins.

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