Archive for Criminal Law

Oct
03

Excerpts from Aubuchon response

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Aubuchon submitted a September 17th response to Ahler wherein she wrote the following:

Kale Baker. an investigator who has zero experience in criminal matters, is second-guessing my charging decisions. Early on in her interviews with me, it became obvious that Ms.Baker. a person who has also accused .  Judge Gary Donahoe of inappropriate conduct and has had her judgment questioned by a federal judge, had not been able to find any factual or ethical wrongdoing. As such, she began targeting the “bad judgment” angle and the very tone of those interviews was negative from there on out. Without the benefit of any real evidence to back it up. Ms. Baker made several statements indicating her belief that my actions were politically motivated rather than based on facts and evidence provided by law enforcement agencies. Desperate to achieve the ICA Romley administration’s goal of finding cause to fire me? Obviously. An expert on judgment? Hardly.

Leonard Ruiz, who is so risk adverse that he would take a case to trial only if it were videotaped and now claims my judgment is so bad it warrants termination. has obviously forgotten about the last evaluation I received from him (also Exceptional). Instead. Leonard has focused on the countless internal battles he has lost since then because he was scared of the targets and the political ramifications of going after them despite the mounting evidence against them. Bitter? Yes. An expert on judgment? Not quite.

Tony Novitsky. who can’t seem to make up his mind whether he wants to be married or not or who he wants to be married to for the months that he does want to be married. is not someone I look to for advice when it comes 10 judgment calls. But there he is, front and center in your investigation and an expert witness on what is good or bad judgment. Indecisive? Yes. An expert on judgment? Hardly.

Without question, judgment is subjective; an opinion. In many instances, there is no absolute right or wrong. However. you have inserted yourself into this process and. in a manner of a few months. have decided that my judgment is bad and now intend to fire me. You can’t find any procedural or ethical violations. but you’re going to fire me anyway because you think I have bad judgment. In and of itself, I think that is bad judgment on your part. Let me remind you that I have never had a no true bill from a grand jury. I have never had a Rule 20 granted at trial and I have never had a case reversed on appeal. Although I have lost some cases, there has never been a finding that there was a lack of sufficient evidence to go to the trier of fact. Not only did the County Attorney approve the decisions to pursue these cases. But experts  such as Bob Barr agreed they were appropriate.

Just because I may be a tougher prosecutor than most doesn’t mean my judgment is bad. Being criticized by people for believing the death penalty is appropriate in 80% of cases where the person has been charged with First Degree murder does not mean I have bad judgment. It reflects only a different philosophy about punishment.

In conclusion, your findings arc unfounded and clearly an attack on the decisions of the prior administration. Especially now that we know ICA Romley’s administration will vacate the office in two months. second guessing the decisions of the prior administration that ICA Romley has openly criticized and worked against and, now in the eleventh hour, focusing your efforts on the discipline of a 20-year career prosecutor with an exemplary record who was complying with the decisions of her supervisors in that prior administration not only reeks of politics, but is totally absurd.

Categories : Criminal Law
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Oct
03

More excerpts from Aubuchon dismissal letter

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Mr. Ahler’s September 8th letter also included the following:

The evidence which has been gathered during the internal investigation makes it clear there was no evidence upon which to charge Judge Donahoe with the crimes of bribery, hindering or obstruction of justice. The motivation for filing the charges on the morning of December 9, 2009 was to prevent a hearing that Judge Donahoe had set for 1 :30 p.m. that afternoon to consider a motion filed by the Board of Supervisors and County Administration requiring that any specially appointed deputy county attorneys attending the grand jury first be authorized to act by the Board.

Between the time the Motion re: Unauthorized Special Deputy County Attorneys was filed by counsel for the Board of Supervisors on November 13,2009 and the filing of the criminal charges on December 9, 2009. the following occurred:

November 13. 2009 – Motion re Unauthorized: Special Deputy County Attorneys

November 26, 2009 – State’s Motion to Strike Motion in Unspecified Criminal

Matter (challenging Motion re: Unauthorized Special Deputy County Attorney).

November 30, 2009·- E-mail from Judge Donahoe’s office setting hearing for

12/9/2009 at 1 :30 p.m.

December 1,2009 – RICO action filed identifying Gary Donahoe as a

“conspirator. ”

December 4, 2009 – You request Donahoe to appoint out-of county judge to hear

motion re: specially appointed deputy county attorneys to attend grand jury.

December 8, 2009 – You prepare direct complaint charging Judge Donahoe with

the crimes of bribery. hindering and obstruction of justice.

December 9, 2009 – Direct criminal complaint filled against Donahoe prior to the

1 :30 p.m. hearing.

December 9, 2009 – Judge Donahoe is served with the criminal complain!.

December 9, 2009 – Judge Donahoe cancels I :30 p.m. hearing.

December 9,2009 – MCAO issues press release essentially acknowledging that

criminal charges were brought for the purpose of preventing the hearing from

taking place. (ABU 00207).

It is obvious that because Judge Donahoe would not recuse himself, send the matter to an out of county judge or continue the hearing, a decision was made to file criminal charges against him. Indeed. during your interview you admitted that was the reason you filed the criminal complaint. A mad rush was made in the afternoon of December 8, 2009 to put together the criminal complaint. (See interview of Martha Trujilllo.) Then, you attempted to get the complaint filed that evening after hours, by requesting a Maricopa County Attorney’s OfJice

investigator swear out the complaint. Del. Tim Cooning. upon receiving the criminal complaint and realizing what was being alleged and about whom, had the good sense to contact his supervisor. Dct. Cooning knew that questions may be asked by the IA judge. Det. Cooning knew nothing about the mailer and correctly concluded that he would be unable to provide truthful and complete answers to questions that might be posed. The probable cause statement (Form 4) that was attached to the direct complaint does not establish probable cause for any of the crimes identified. It is merely a reiteration of the judicial misconduct complaint Chief Hendershott of the Maricopa County Sheriffs Office filed against Judge Donahoe.

A seasoned criminal prosecutor, such as you, either knew or should have known that the form 4 did not contain sufficient facts to support probable cause much less meet MCAO standards of “reasonable likelihood of conviction.” The “Supplemental Report” regarding Judge Donahoe was prepared on December 9, 2009, the day after the direct complaint was prepared and does not support  any of the criminal charges asserted. Again, a review of all the material maintained in your office or sent to the Department of Justice has occurred and there is no admissible evidence to support the crimes charged. The Grand Jury reached the same conclusion when it voted to “end the inquiry.” On January 4, 2010 you presented information to the 494 Grand Jury, including matters related to Judge Donahoe. On March 3, 20 10 the Grand Jury voted to “end the inquiry.” The definition or “end the inquiry” means that after the Grand Jury hears the evidence they have determined that there is no probable cause and that additional evidence or witnesses will not make a difference. When the 494 Maricopa Grand Jury was empanel led on December 9, 2009 they were instructed as follows concerning the meaning of end the inquiry: “The case is so bad there’s no further evidence that could be brought to you folks . [The] case is so bad you don’t want to go any more into the case than you just have. There’s no law that you can conceive indicting this person under. That’s what ending inquiry means.”

Equally troubling to me is that you forwarded to Gila County Attorney, Daisy Flores, the “Bug Sweep” investigation involving the MCBOS and some members of the County Administration, one of the matters which the Grand Jury voted to “end the inquiry.” First. it is unclear whether you had the authority to send this matter to Ms. Flores. Secondly, you failed to inform Ms. Flores that the Grand Jury ended the inquiry. In my judgment, this was a dishonest act because you failed to completely and truthfully provide Ms. Flores with all relevant information. Your disingenuous conduct was compounded by the fact that Yavapai County Attorney Sheila Polk had previously reviewed this same matter in June 2009 and had come to the conclusion that there was no crime committed. The fact that Ms. Flores promptly returned the material does not affect your initial wrongful conduct.

Categories : Criminal Law
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Jun
02

Sheriff’s grudge against presiding criminal judge recounted

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Superior Court Judge Donahoe’s attorney discussed the conflict between the Judge and Sheriff in his recently filed notice of claim:

The  Sheriff had  other,  more  personal  reasons  for  waging war  against  Judge Donahoe.  Some months earlier, a violent sex offender in court for a hearing escaped from  the Sheriffs custody during a lunch recess.  To  date,  he  remains at  large.  Soon after,  the  Sheriff  allegedly  implemented  new  security  procedures,  but  failed  to provide adequate  staff to  carry out  these procedures  in a timely  fashion.  The upshot was  that  criminal  defendants  in  the  Sheriffs  custody were  either perpetually  being brought  to  court late  for  various hearings or were not appearing  at  all.  These delays affected  attorneys,  judges,  jurors  and  defendants.  When  the  judges  with  criminal calendars  complained,  they  were  told  there  was  no  one  available  to  bring  the defendant to  the courtroom.  It fell to Judge Donahoe, as Presiding Criminal Judge,  to try to  resolve the problem.

Judge  Donahoe  met  repeatedly  with  MCSO  personnel  in  an  attempt  to improve  the  inmate  delivery  system.  The  court  administration  made  significant operational  changes:  consolidating  divisions,  reducing  courtrooms,  and  limiting hearings  to  only  certain days – all  in  an  effort to  assist  the  Sheriff in getting  inmates to  court on  time.  Nothing worked.  The  Sheriff continued  to  bring  them  late,  if he brought them at all.

The Sheriff has  a statutory  obligation  to  “attend all  courts”  and  “obey  lawful orders and directions  issued by  the judge.”  A.R.S.  § 11-441 (A)(4).  The Sheriff was directly  ordered  by  Judge Anna Baca  to  adhere  to  the  requirements  of that  statute. When  the  Sheriff failed  to  improve  his  inmate  delivery  performance,  the  criminal judges began  issuing Orders  to  Show Cause why  the  Sheriff should  not  be  held  in contempt  for  his  repeated  refusals  to  bring  the  inmates  to  court  on  time.  Judge Donahoe  held  a  hearing  on  the  various  OSCs  and  entered a  contempt order against MCSO  Deputy  Chief Trombi  (who  admitted  responsibility  for  getting  inmates  to court),  along with monetary  sanctions,  for  the  repeated  failures  to  deliver  inmates  to court.  Judge  Donahoe’s  Order  was  an  affront  to  Sheriff  Arpaio.  He  is  not comfortable abiding by any rule of  law that is not his own.

Finally,  Judge Donahoe handled  the  contempt charge brought against MCSO Deputy  Stoddard  – a  courtroom  deputy  who  sneakily  and  unethically  read  and removed  papers  from  a  defense  attorney’s  file  in  open  court  and  had  them  copied.  Judge Donahoe  found  him  in  contempt and ordered him  to  apologize  to  the  defense attorney.  Both the Trombi  and  Stoddard  contempt  findings were  upheld  on  appeal, though some of  the  sanctions were  overturned.  But these  actions of Judge Donahoe added  fuel  to  the  fire  of  enmity that had been raging between and among the Sheriff, County Attorney,  the BOS, and now  the  Superior Court.  It wasn’t long before Judge Donahoe was burned by these flames.

If you have been wrongfully accused of a crime, contact Phoenix Criminal Lawyer Joshua S. Davidson today for a confidential consultation.

Categories : Criminal Law
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Apr
05

Phoenix prosecuting attorney sanctioned by State Bar

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A Deputy Maricopa County Attorney was recently suspended from practicing law for one month and placed on probation for one year.  The sanctions arise from the prosecutor’s conduct during a homicide trial wherein he committed numerous acts of misconduct including the presentation of evidence that the judge had previously suppressed.  Prior to the sanctions being imposed against the attorney, a hearing officer appointed by the bar prepared a report which included the following description of one such incident:

In his opening statement while referring to certain photographs depicting bloody footprints, Respondent stated: “And some of those footsteps will be footsteps from the perpetrators, one of whom was the defendant, Mr. Jones …. [T]he blood tracks here, some of which are from Ms. Perez, some are from the perpetrators such as the defendant.”

There was insufficient physical evidence to connect the footprints to Jones.

In fact there was no evidence to connect any bloody print to any particular

Respondent argued that his opening statement on this issue was proper because some of the victim’s blood had been found in a vehicle owned (or operated) by the other defendant who pled guilty. Therefore, Respondent reasoned: someone had walked through the victim’s blood and then gone into the vehicle; that someone was a perpetrator; the State alleged Jones was a perpetrator; therefore the statement was literally true.

THE COURT: There’s — is there any evidence that any of

those footprints match [the Defendant], whether it’s his

blood or his — anything?

MR. DUFFY: No. I can’t prove that any of those footprints

match anyone, except I know that one of the perpetrators’

footprints did leave Mr. Medina — Mr. Aispuro’s blood on

the back floor mat of Palo fox’s Suburban. So I do know that

one of those sets of footprints is from one of the

perpetrators. I do know that. Which one, I don’t know. Does

It make a difference?

THE COURT: Well, when he’s sitting here as a defendant,

it does.

MR. DUFFY: I don’t think it does, because it’s accomplice

liability.

Respondent knowingly tried to tie footprints to Jones when he knew that such footprints were not matched to Jones. Moreover, Respondent argued that Jones was a perpetrator, and some perpetrator had left blood from the victim in the vehicle, which was improper argument for an opening statement.

The trial court was compelled by Respondent’s repeated improper arguments in opening statement to reinstruct the jury that “what the lawyers say in opening statements is not evidence nor should it be argument.”

(citations omitted)

41.  In his  opening  statement while  referring  to  certain photographs  depicting
bloody  footprints,  Respondent  stated:  “And  some  of those  footsteps  will  be  footsteps
from the perpetrators, one of whom was the defendant, Mr. Jones  …. [T]he blood tracks
here,  some  of which  are  from  Ms.  Perez,  some  are  from  the  perpetrators  such  as  the
defendant.”  Ex.  12 at SBA 166; see also Ex.  12 at SBA 167.
Categories : Criminal Law
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Jul
26

Confession of former criminal defense attorney to be used at trial

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Jason Keller is accused of smuggling drugs, a cell phone and a cell phone charging device into the Maricopa County Jail during “legal visits” he conducted with various inmates.  Mr. Keller’s defense lawyer recently filed a motion challenging the means by which his confession was obtained by the Sheriff’s Office and argued that it should not be admitted because it was involuntarily made by the former defense attorney.

The Court reviewed the confession and denied the defendant’s motion:

The Court has considered Defendant’s Motion to Suppress Statements as a Result of Involuntariness and the State’s Response thereto.  The Court has reviewed the transcript of the interview conducted of Defendant immediately following his arrest.  The Court has also considered the evidence presented at the evidentiary hearing held on the motion.  (A CD of the interview was admitted into evidence but the Court was unable to view it as it was not compatible with the Court’s computer.)

Defendant argues rather broadly that the Defendant’s statements should be suppressed as involuntary because of his “vulnerable” state of mind and alleged promises made to him by the police officers.  

The Court finds that the statements taken from the interview transcript and set forth in the Defendant’s motion are piecemeal excerpts and are not cited in any chronological order.  This results in a skewed representation of what was said by each party and/or at what point the statements were made during the interview.  The Court reviewed the transcript of the interview in its entirety.

In Arizona, confessions are presumed to be involuntary and it is the burden of the State to overcome this presumption.  State v. Scott, 177 Ariz. 131, 836 P.2nd 792 (1993).  A court must look at the totality of the circumstances when determining the voluntariness of a defendant’s statements.  Scott, id.; State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1946).  While personal circumstances of the defendant may be considered, the critical element in a voluntariness inquiry is whether police conduct constituted overreaching.  State v. Stanley, 167 Ariz. 519, 809 P.2d. 944 (1991).

 

The interview viewed in its entirety demonstrates that Defendant who was a licensed attorney was aware of his rights and was also very aware of the potential consequences of talking to the police without an attorney present to advise him.  He admitted that he was exhausted, Having not slept for two days and that it was not unusual for him to go without sleep for five, six and even up to thirteen days.  He admitted that the last time he had used methamphetamine was the Friday before the interview but never admitted that he was under the influence of any drug at the time of the interview.  He was coherent and contemplative of his actions, his personal life and the impact of the alleged criminal activities on his future.  The Defendant was never left alone and he remained awake during the entire interview.  The police officers did not exhibit any coercive or abusive behavior during the interview.

 

The Defendant also alleges that based on his prior experience with Detective Coste as an attorney representing a defendant and being present during a “free talk”, that he was essentially induced into believing that he would receive some benefit from talking to the officers following his arrest.  The transcript does not substantiate this claim.  Defendant is informed initially that he is in a “little bit different position here” than Defendant’s client was in because Defendant’s client participated in a “free talk.” 

 

Detective Coste advised Defendant many times that he could not make any promises and that it was up to the Attorney General as to what would happen.  He did tell the Defendant that he would tell the both the prosecuting attorney and the Initial Appearance judge that he was cooperative.

 After Defendant had discussed with the detectives the contraband (including drugs, a cell phone and a cell phone charger) he did ask Detective Coste if he was picking up new charges by talking.  He was told that the charges were relating to the “stuff” they had already talked about that day and already knew about.  Detective Coste later told him again that he would tell the prosecuting attorney about how the Defendant cooperated with the detectives and that the Defendant “knows how the system works” and “knows what happens at that point when the attorneys get that information.”  These statements of Detective Coste do not support Defendant’s position that he relied either on his past experience with Detective Coste or the “promises” made during the interview before making his statements immediately following his arrest.

 The Defendant has not demonstrated to the Court that his will was overborne or that he relied on promises made by the detectives prior to making his statements during the interview or that the police officers were overreaching in any manner during the interview. 

Categories : Criminal Law
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In 2002, officer Lovelace fatally shot a woman who was suspected of illegal obtaining prescription drugs at a drive-thru pharmacy in Chandler.  Lovelace was thereafter charged with murder by the Maricopa County Attorney’s Office.  A jury found Lovelace not guilty of the charge during a criminal trial that ended in the summer of 2004.

Lovelace was terminated from the department and the city had to pay several million dollars to settle legal claims arising from his conduct.  According to news reports, Lovelace will now be working as a detention officer with the Pinal County Sheriff’s Office.

Lovelace’s criminal case was extensively litigated by his criminal defense attorney  before the trial commenced.  In fact, the case was actually dismissed at one point after the court ruled that prosecution did not present the evidence to the grand jury in a full and fair manner.  After the court’s ruling, the prosecution presenting the case to another grand jury and obtained another indictment.  In remanding the case back to the grand jury, the court held:

 Arizona law has never required the grand jury to receive or consider all potentially exculpatory evidence. In State v. Superior Court (Mauro), 139 Ariz. 422, 678 P.2d 1386 (1984), the Court held that the prosecutor’s duty to present exculpatory evidence to the grand jury extended only to “clearly exculpatory evidence”, defined as “evidence of such weight that it would deter the grand jury from finding the existence of probable cause.” Mauro, Id. at 425, 678 P.2d at 1390. However, an accused is entitled to due process during grand jury proceedings. State v. Emery, 131 Ariz. 493, 506, 642 P.d 838, 851 (1982). Due process requires the use of an unbiased grand jury and a fair and impartial presentation of the evidence. Id. State v Emery. The duties of fair play and impartiality imposed on those who attend and serve the grand jury are meant to insure that the determinations made by that body are informed, objective, and just. Crimmins v. Superior Court in and for Maricopa County, 137 Ariz. 39, 668 P.d 882 (1983). Arizona case law has specifically mandated that false, misleading or inaccurate evidence may not be presented to the grand jury, and, if it is, a remand is warranted. Maretick v. Jarrett, 391 Ariz. Adv.Rep. 9, 63 P.3d 120 (En Banc 2003); Escobar v. Superior Court 155 Ariz. 298, 746 P.2d 39 (App.1987). It appears to the Court that several errors occurred in Detective Kieffer’s testimony before the grand jury. First, Detective Kieffer testified that Defendant said when he shot Ms. Nelson he remembers looking at her and seeing: “….. that her arms were up on the steering wheel at about 10:00 o’clock and 2:00 o’clock” (GJT p.19) That was not the way Defendant described it in his taped interview dated October 11, 2002. Defendant, in fact, stated: “I know that I was facing her at a slight angle, not directly perpendicular. Less than perpendicular when I shot. So where I was exactly all I know is the car was coming at me…. It’s at a slight angle and she’s….. has her left arm still up. So she’s slightly turned and she’s making….. So she’s leaning slightly to her right and she’s looking right at me as she’s turning.

There is nothing in the transcript of Defendant’s interview that confirms that he said that Ms. Nelson’s arms were up on the steering wheel at about 10:00 and 2:00 o’clock. Second, the Affidavits of Attorney Dale Norris and Chandler Police Officer Daryle Palmer, both of whom witnessed the interview of Defendant, state that Defendant never stated or demonstrated that when he shot Ms. Nelson her left hand was at the 10:00 o’clock position. Daryle Palmer stated that Defendant indicated he first saw Ms. Nelson turning her steering wheel with her right hand in a counter-clockwise motion, turning the vehicle towards him. Defendant further indicated that just before he discharged his weapon, Ms. Nelson had her left arm up and was leaning slightly to her right. Officer Palmer stated that, as Defendant demonstrated this movement, the left side of Ms. Nelson’s body was more forward than her right side, her left hand was not on the steering wheel, her left forearm was raised and moved toward the passenger side, which caused her left upper arm, which was close to her body, to be rotated slightly clockwise. Dale Norris stated that Defendant said and demonstrated that Ms. Nelson was turning hard to the left and her right hand was high on the steering wheel. He said that Defendant stated and demonstrated that Ms. Nelson’s left arm was held high and visible above the door while turning the vehicle. Defendant indicated and demonstrated that Ms. Nelson was leaning to the right away from Defendant before he discharged his weapon. Finally, Mr. Norris stated that Defendant demonstrated that when turning her body to the right, Ms. Nelson was exposing the rear of her left shoulder to Defendant. The Court FINDS it noteworthy that the State has not offered an affidavit from Detective Kaminsky, who conducted Defendant’s interview, controverting the Palmer and Norris affidavits. These descriptions of what Officer Palmer and Mr. Norris heard and observed during Defendant’s interview become even more important since the following questions were asked by the prosecutor and the following answers were given by Detective Kieffer during the grand jury proceeding.

Q…..”What we have the medical examiner finds the bullet enters the back of her left arm; correct?

A. Yes, sir.

Q. Travels from back to front?

A. Correct.

Q. And comes to rest in this right breast?

A. Correct.

Q. The officer said that he was facing her when he fires?

A. Correct.

Q. With her arms up on the steering wheel?

A. Correct.

Q. That’s inconsistent with what the medical examiner found because the

medical examiner found the left arm had to have been up against the

chest wall?

A. Yes.

Q. The arm would not have been extending?

A. Correct.

Q. It’s possible, I suppose, that at the time the shot was fired she

could have — in order to get that back to front, she could turned

very sharply to right and then exposed her left arm to where the

officer said he was?

A. Correct. Correct.

Q. That’s not how he described seeing her?

A. No, it’s not.” (GJT, pp. 40-41) (Emphasis added).A. No, it’s not.” (GJT, pp. 40-41) (Emphasis added).

Detective Kieffer’s testimony, that Defendant did not describe that Ms. Nelson turned to the right and then exposed her left arm to where the Defendant said he was positioned, was misleading. In fact, Detective Palmer and Mr. Norris, who were both present during the interview, stated that is precisely how he described it. The Court notes that neither Mr. Norris nor Officer Palmer prepared supplements to become part of the departmental report regarding this incident. Detective Kieffer was not present during Defendant’s interview and did not have the information from Officer Palmer or Mr. Norris when he testified before the grand jury. The prosecutor also did not have the benefit of any supplements prepared by Mr. Norris and/or Officer Palmer. Accordingly, it cannot be said that the prosecutor and/or the officer intentionally mislead the grand jury regarding what the Defendant described. However, in the telephonic conference between Court and counsel on May 8, 2003, Mr. Imbordino acknowledged that, if had been aware of the information provided by Palmer and Norris, he would have had to present it to the grand jury.

With regard to Detective Kieffer’s testimony as to the 10:00 o’clock and 2:00 o’clock position of Ms. Nelson’s arms, that testimony was simply a misunderstood interpretation of what Defendant stated in his interview. Regardless of the fact that there was no intentional misleading of the grand jury, the duties of fair play and impartiality imposed on those who attend and serve the grand jury require that the presentation of the evidence be a fair presentation. In this case, the incident took place in a matter of seconds. The exact position of Ms. Nelson’s body in her vehicle at the time of the shooting in relation to Defendant’s position is a crucial issue to be determined by the finder of fact. The State has the right to use Defendant’s statement in the grand jury presentation, but its use must be precise and accurate. It is important in the interests of justice that a full and fair presentation of the relevant evidence regarding the position of Ms. Nelson’s body in her vehicle be presented to the grand jury. That was not done and, accordingly, IT IS ORDERED granting Defendant’s Motion to Remand. The matter is remanded to the grand jury for further proceedings in accordance with the ruling of the Court. IT IS FURTHER ORDERED vacating any pending trial or trial management conference dates.

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Jun
11

Court denies County Supervisor Don Stapley’s Motion to Dismiss

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Don Stapley is facing over 100 charges in the Superior Court arising from allegations that he completed financial disclosure forms containing omissions and misstatements.  His attorneys attempted to get the charges dismissed on the grounds that the county attorney had previously provided legal advice related to the disclosure forms.  In denying Mr. Stapley’s motion the court held:

The evidence is undisputed that the Defendant as a member of the Board of Supervisors for Maricopa County consulted with Deputy Maricopa County Attorneys assigned to the County Attorney’s civil department/division on matters relating to his official duties and provided financial information. It is also undisputed that generally the subject of that disclosure is also the subject matter of certain counts in the indictment against the Defendant. There is no evidence that any of the information disclosed to the civil Deputy County Attorneys was used to obtain the indictment against Defendant.

It is the Defendant’s position that because confidential information was obtained by the Maricopa County Attorney’s office that was part of the indictment, a conflict of interest was created. This conflict disqualified the Maricopa County Attorney’s office from appearing before the Maricopa County Grand Jury as an authorized prosecutor to present evidence under Rule 12.5, AZ Rules of Criminal Procedure. Defendant further argues that the appearance of an unauthorized person before the Grand Jury denies him Due Process and irreparably taints the indictment. This taint in turn requires dismissal.

The State’s argument in response is that there was no conflict of interest disqualifying the Maricopa Country Attorney since there is no attorney-client relationship. The Attorney-Client relationship, according to the State, is one created by statute, A.R.S. § 11-532(A) (9), which provides that the County Attorney is the legal advisor to the Board of Supervisors. The State further argues that this relationship does not extend to individual members of the Board.
The State’s position is that giving advice to individual members on how to deal with conflict of interest issues and on the financial disclosure forms as well as presenting evidence here to the Grand Jury is not egregious misconduct requiring dismissal.

At the hearing on these motions, a former civil department Deputy County Attorney and a current civil department Deputy County Attorney (civil deputies) testified. The testimony established that prior to this indictment, the civil deputies did not explain to newly elected county officials, including members of the Board of Supervisors, the scope of the attorney-client relationship with the Maricopa County Attorney’s office. The current civil deputy testified she gave “general advice” on conflict of interest issues and financial disclosure forms, but not “specific advice” on how to fill out the forms. She testified she gave individual advice relating only to a member’s role as a Supervisor and would not give advice on what information to include on the financial disclosure forms.

The former civil deputy testified that he gave legal advice to individual members if it was in furtherance of his representation of the Board of Supervisors. He also gave advice in the past to members of the Board of Supervisors on financial disclosure forms as to what items to include on the forms and viewed this as part of his role as a civil deputy. He viewed this as part of the attorney-client relationship and as confidential information. He has given advice to the Defendant on disclosure forms but cannot recall any specifics. He also noted however that if an individual member disclosed something that would concern the entire Board, he would discuss the matter with other Board members.

There is no doubt that the better practice would have been for the Maricopa County Attorney to refer the entire investigation at its inception to another State prosecuting agency, such as the Attorney General or another county attorney, given the relationship with the Board of Supervisors as its legal advisor. This Court must however review all the evidence to determine if, under the specific circumstances here, the Maricopa County Attorney was disqualified because an attorney-client relationship was created with the Defendant. State ex rel. Romley v. Superior Court, 184 Ariz. 223, 227 ( App. 1995).

As the Arizona Supreme Court noted in In re Petrie, 154 Ariz. 295, 299-300 (Ariz. 1987), the relationship is determined by looking at the parties’ conduct. For example, is there evidence that “… the party sought and received advice and assistance from the attorney in matters pertinent to the legal profession….” and what was the expectation of the client.

Here there is no dispute that the Defendant received legal advice and assistance from civil deputies within the Maricopa County Attorney’s Office. The inquiry does not end here however. The test is a subjective one and requires this Court to look “…to the nature of the work performed and the circumstances under which the confidences were divulged….” In re Petrie, supra. A reasonable person in the Defendant’s position when soliciting legal advice and assistance from the civil deputies about business ventures that could be conflicts of interest and/or would be reportable on the elected official’s financial disclosure statements would have been aware that the Maricopa County Attorney is also a prosecuting agency in addition to acting as the legal advisor for the Board of Supervisors. This is not a situation where the Defendant first engaged a private attorney for legal assistance, divulged confidences and later was prosecuted by the same attorney on the same matters. It was not reasonable under the circumstances here for Defendant to expect that the Maricopa County Attorney was his attorney on all matters. The legal advice and assistance from the civil deputies related to Defendant’s role as a member of the Board of Supervisors. As Mr.Wolcott, the former civil deputy, pointed out, the individual legal assistance was only given to individual members as necessary to further the business of the Board of Supervisors, the County Attorney’s client.

There was an attorney-client relationship created but it was limited in scope. This hybrid or limited scope attorney-client relationship does not given the same protections one would expect from representation by private counsel. The confidences divulged to the civil deputies were not used to obtain an indictment against the Defendant. Unlike the situation before the Honorable Gary Donahoe in 462 GJ 350, the County Attorney here is not attempting to use privileged communications with its client, the Board of Supervisors, or investigating the client’s (the Board of Supervisors) activities upon which it gave legal advice.

This Court is not convinced that the type of attorney-client relationship created between Defendant and the Maricopa County Attorney would disqualify the County Attorney from appearing before the Grand Jury to present evidence of criminal activity by Defendant so long as no confidences were divulged. The Motion to Dismiss is denied.

Contact Phoenix DUI and Criminal Defense Attorney Joshua Davidson today if you are facing criminal charges in Maricopa County Superior Court.

Categories : Criminal Law, Politics
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May
26

Mesa criminal courts to be consolidated downtown

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Presiding Judge Barbara Rodriguez Mundell announced that the five criminal divisions currently located in the Maricopa County Superior Court Southeast Facility in Mesa will be relocated to downtown Phoenix.  The move is fashioned to save taxpayers the costs associated with the transportation of inmates to that facility and other associated expenses.  In addition to saving taxpayers dollars, the move should also help expedite the completion of the Courts’ daily business.  All too often, attorneys are double or triple booked in different courts located in different areas of the valley on the same day.  With all the felony criminal courts under one roof, downtime associated with the commute of attorneys between the various courts should be minimized.

Categories : Criminal Law
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May
24

Improperly requested jury instruction not considered on appeal

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The Arizona Court of Appeals recently issued a published opinion in the matter of State of Arizona v. Tracie Renee Geeslin. Ms. Geeslin was convicted at trial of a number of felony offenses including theft of means of transportation. During trial, Ms. Gesslin requested that the jury be permitted to consider the less serious crime of unlawful use of means of transportation. On appeal, she challenged the trial court’s rejection of that request.In its decision the Arizona Court of Appeals essentially held that, although it implicitly agreed with Ms. Geeslin that the jury should have been allowed to consider the less serious offense, the issue had not been properly raised during trial and therefore could not be considered on appeal. Specifically, Ms. Gesslin’s attorney apparently made the request to the judge and the prosecutor in an informal email and neglected to follow up by filing a formal motion with the court. Because emails of this nature are not considered part of the court’s official record, the request was treated by the court of appeals as if it was never made. Like most issues on appeal, a request for a specific jury instruction must be formally made during the course of trial in order for issue to be addressed on appeal.

This Court of Appeals decision underscores that the importance of “protecting the record” cannot be overstated. Because the defense attorney did not incorporate the request into the official court record, Ms. Gesslin forever lost the opportunity to raise that issue on appeal. Regardless of how strong her argument was that the court should have granted the request, the Court of Appeals would not even consider the issue.

While Geeslin
persuasively argues that unlawful use pursuant to A.R.S. § 13-
1803 (2001) is a lesser included offense of theft of means of
transportation pursuant to A.R.S. § 13-1814(A)(5), and that the
trial court should have given the lesser included instruction,
we are unable to address the issue. The record does not contain
the requested jury instruction and we will not find that a trial
court erred in failing to give an instruction that we cannot
review.

Criminal charges are serious and require serious legal representation. If you are in need of legal representation, have an experienced criminal defense attorney in your corner who will make sure your rights are properly protected. Contact the Law Offices of Joshua S. Davidson today for your free initial consultation.

Categories : Criminal Law
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May
23

Three months after his escape, convicted sex offender Adrian Cruz remains at large

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On February 18th, Adrian Cruz was left unattended and walked right out the front door of the Maricopa County Superior Court during a recess in his trial. Over three months have passed since his escape and he remains at large. Mr. Cruz was already serving a life sentence for a previous sex offense and was being imprisoned in the secure confines of the Arizona State Department of Corrections. His escape has drawn criticism not only towards the Sheriff’s Office, but also towards Andrew Thomas and the Maricopa County Attorney’s Office for bringing charges against Mr. Cruz in the first place.

Contact Phoenix Sex Crimes Attorney Joshua S. Davidson today if you or a loved one have been accused of child abuse, molestation, or other sex crimes offense in Arizona.

Categories : Criminal Law, Politics
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