Archive for Uncategorized

Jan
01

Resignation Letter from Judge Kozinski

Posted by: | Comments Comments Off on Resignation Letter from Judge Kozinski

It has been an unparalleled honor to serve as a federal judge for more than thirty-five years. I firmly believe that a strong judiciary, free from political pressures, is vital to the preservation of this great nation. I found in this country, and in my work, opportunities and satisfaction that I never thought imaginable when I arrived here, at the age of 12, a refugee from Communism. I am grateful to my colleagues with whom I have had the privilege of serving, and to the countless hard-working lawyers who have appeared before me. I have learned so much from them all and will be forever grateful for their professionalism, intellectual rigor, and in many instances their steadfast friendship.
It has also been my privilege to help train the best and the brightest of several generations of new attorneys. I was made better by working with them. My clerks went on to stellar careers in law, business and academics. Their success has made me proud and I am gratified by the outpouring of support I have received privately from so many of them.
Still, I’ve always had a broad sense of humor and a candid way of speaking to both male and female law clerks alike. In doing so, I may not have been mindful enough of the special challenges and pressures that women face in the workplace. It grieves me to learn that I caused any of my clerks to feel uncomfortable; this was never my intent.
For this I sincerely apologize.
A couple of years ago, as I reached the age when several of my colleagues had decided to take senior status or retire, I began considering whether the time had come for me to move on as well. Family and friends have urged me to stay on, at least long enough to defend myself. But I cannot be an effective judge and simultaneously fight this battle. Nor would such a battle be good for my beloved federal judiciary. And so I am making the decision to retire, effective immediately.

Categories : Uncategorized
Comments Comments Off on Resignation Letter from Judge Kozinski
Jan
01

Discretion and Discrimination In Seattle

Posted by: | Comments Comments Off on Discretion and Discrimination In Seattle

A variety of state and federal laws prohibit discrimination in property rentals, but that wasn’t good enough for Seattle. As long as there was discretion, there was the possibility of discrimination, and so they enacted a law to prevent implicit bias by requiring landlords to rent to the “first qualified” potential tenant.
The goal is to ensure prospective renters are treated equally, according to Councilmember Lisa Herbold, who championed the policy. When landlords pick one renter among multiple qualified applicants, their own biases — conscious or unconscious — may come into play, she says.
There are questions, even after a tenant meets the basic “qualifications” for renting, such as credit rating, ability to pay* and prior landlord recommendations. Prior criminal history cannot be a question, though, as Seattle has forbidden landlords from running a rap sheet. Chief among them is that landlords lose any discretion for intangible qualifications, from a tenant with a bad attitude to one whose personal hygiene could present a problem for other tenants.
The libertarian law firm, Pacific Legal Foundation, is challenging the law.
If government can strip you of choice just because unconscious bias might influence that choice, its power would have no bounds. But that is precisely what Seattle is doing to its landlords. In Yim v. City of Seattle, PLF is challenging an anti-discrimination law that prohibits landlords from choosing their own tenants. Today, we filed our opening brief to ask the Court to invalidate this oppressive and brazen violation of fundamental rights.
Whether this constitutes an unconstitutional taking is unclear. But that this reflects a new level of regulatory creep is certain. At Volokh Conspiracy, Ilya Somin makes the case that this crosses the line.
It is surely true that landlords sometimes engage in subconscious discrimination. Indeed, the same is true of a wide range of people engaging in all kinds of transactions. It does not follow, however, that eliminating landlord choice is the right answer. Doing so is likely to harm tenants more than it benefits them. If landlords cannot rank potential tenants based on factors such as reliability, credit history, their treatment of previous rental properties, and so on, the predictable result is that they will either put fewer properties on the market to begin with, charge higher rent, increase security deposits, or some combination of these and other measures that make rental housing more costly. This likely to be particularly true of landlords who own properties in poor and minority neighborhoods, where landlords believe the risk of nonpayment or other problems is likely to be unusually high.
Will this regulation undermine the rental market in general, and for the poor and minorities in particular, if landlords believe they will be forced into renting to “undesirable” tenants? It’s hard to imagine that people with property to rent will let it lie fallow because of this regulation. They make money renting, and making money is why one becomes a landlord. Holding rentals off the market makes no sense, as they will produce no income.
Whether or not Seattle’s policy is illegal, it potentially sets a dangerous precedent. If the state can impose severe restrictions on liberty and property rights in order to curb subconscious bias, there would be few meaningful limits to its power. Very few if any types of decisions are completely free of cognitive errors of this type. They can occur in almost any economic or social transaction.
And this lies at the core of the opposition to this deep regulatory incursion, that it’s one more step into governmental micromanagement of individual freedom. There will certainly be instances where the “first come, first rent” regulation results in problems, particularly for small buildings where getting along with one’s neighbors is at a premium.
There is no magic to landlords’ assumptions about who will be a better tenant than someone else. And many landlords don’t really care, as this is how they manage their rentals already. But the question of whether this new intrusion into individual discretion, property rights, personal choices, will lead to ever-deeper regulation of people’s discretion to “curb subconscious bias” is a serious one.
Renting apartments is a business, like any other. Businesses are subject to regulation. You may believe they shouldn’t be, but they are. The law allows it and that’s really not a subject for serious debate. However, regulating business for implicit bias, as opposed to discrimination, is a very different animal. Since implicit bias, itself a controversial concept, can’t be detected per se (because it’s implicit, see?), the only means of combating it is to prohibit discretion at all.
And if individual discretion becomes a legitimate subject of business regulation, with the solution being to prohibit all individual discretion, the consequences could be bizarre. And even though this comes as a business regulation, regulation tends to transfer over to the personal realm eventually, as demonstrated by Title IX’s impact.
Is the “first come” rule for Seattle rentals the end of the world? In that instance, probably not. But regulatory creep has happened over and over, and individual discretion is a core aspect of individual freedom, even when it comes to how one chooses to conduct one’s business.
Is the potential benefit of ending implicit bias worth losing the ability to make business choices based on one’s personal discretion? Perhaps. But will this prove to be the acceptable baby step that leads inexorably to the next one, and the one after that, which ends up socially engineering our every choice? That’s the question that should be considered now, as it will be too late once personal discretion has been lost to good intentions.
*The law prohibits discrimination based on the source of rental payments.
The Seattle City Council approved an ordinance Monday banning discrimination by landlords against renters with alternative sources of income, such as Social Security benefits, veteran’s benefits, unemployment insurance, child-support payments and other assistance programs.

Categories : Uncategorized
Comments Comments Off on Discretion and Discrimination In Seattle
Dec
19

Bar Counsel requests a finding that Thomas testified falsely at his own disciplinary hearing

Posted by: | Comments Comments Off on Bar Counsel requests a finding that Thomas testified falsely at his own disciplinary hearing

In their recently filed proposed findings, bar counsel including the following:

408. Thomas and Aubuchon’s Testimony About Probable Cause to Charge Judge Donahoe. At the hearing in this matter, Thomas testified that he brought the bribery charge against Judge Donahoe because the Judge was an “accessory” to the “Mundell-Stapley-Irvine triangle.”674 Thomas stated that he charged Judge Donahoe as an accomplice “because he was repeatedly beating back investigations into not only the court tower, but any of the principals who were involved in other matters or at the periphery of that deal, which [Thomas] considered corrupt.”675 According to Thomas, Judge Donahoe was an accessory to bribery because he did the following:

a. Quashed a grand jury subpoena concerning the Court Tower;

b. Disqualified MCAO from the Court Tower matter; and

c. Quashed a search warrant of an office in the Stapley matter.676

409. The Hearing Panel finds this testimony to be unbelievable. There was no mention in the PC statement attached to the direct complaint against Judge Donahoe that Judge Donahoe was an accessory to an alleged bribe involving Mundell, Stapley and Irvine.677 Thomas had attached the complaint and he assumed the PC statement to his news release about charging Donahoe.678 The fact that there is not one mention of Thomas’s theory in the PC statement indicates that his explanation is an attempt to create probable cause where there was none. No other witness in this hearing, including Aubuchon, testified that the theory for charging Judge Donahoe was that he was an accessory.

410. Further, this testimony is unbelievable because the three acts that Thomas points to as criminal were judicial decisions that Judge Donahoe made. There was no evidence presented to this Hearing Panel that MCAO or MCSO had evidence that Judge Donahoe accepted a bribe for making these judicial decisions. Thomas’s testimony that these acts constituted acts of an accessory to bribery is totally incredible. The Hearing Panel finds that Thomas engaged in misrepresentation at the hearing on this issue.

411. Aubuchon testified that the PC statement set forth probable cause to believe that Judge Donahoe engaged in bribery, hindering and obstruction.679 The Hearing Panel finds that testimony incredible. A reading of the PC statement indicates that it does not set forth any evidence of criminal conduct by Judge Donahoe. No lawyer, especially one with extensive criminal prosecution experience, could conclude otherwise. For Aubuchon to testify that it did set forth probable cause indicates that she engaged in misrepresentation to this Hearing Panel. As noted above, no other evidence except that in the PC statement was presented to this Hearing Panel that Judge Donahoe engaged in crimes.

Categories : Uncategorized
Comments Comments Off on Bar Counsel requests a finding that Thomas testified falsely at his own disciplinary hearing
Dec
19

More excerpts from the proposed findings filed by Bar Counsel

Posted by: | Comments Comments Off on More excerpts from the proposed findings filed by Bar Counsel

384. The Filing of Charges Against Judge Donahoe. As described above in Section III.D.1, Judge Donahoe had scheduled a hearing for the afternoon of December 9, 2009 regarding the Notice and Motion filed by Thomas Irvine and Edward Novak on behalf of the County.601 The motion filed for the Board by Irvine and Novak sought an order prohibiting special deputy county attorneys from appearing before a grand jury.

385. On December 9, 2009, under Thomas’s authority and with his approval, Aubuchon through MCSO detectives filed a criminal case against Judge Donahoe.602 Thomas made the decision to file a direct complaint against Judge Donahoe following a meeting with Aubuchon, Hendershott, and Arpaio.603 Thomas and Aubuchon denied that they wanted to file the charges against Judge Donahoe to stop that hearing.604 However, as discussed below, the Hearing Panel concludes that the evidence is clear and convincing that Thomas, Aubuchon, Sheriff Arpaio and then-Deputy Chief Hendershott decided to file the charges against Judge Donahoe so that he would not hold the December 9, 2009 hearing.

386. Aubuchon and Detective Gabe Almanza signed the direct complaint.605 It charged the judge with hindering, obstruction and bribery.606 There was no investigation in this matter prior to the filing of the direct complaint.607 Only after the direct complaint was filed did MCSO create a report.608

387. Aubuchon attempted to file the charges against Judge Donahoe a day earlier on December 8, 2009, after a meeting with Thomas, Arpaio and Hendershott.

388. On the afternoon of December 8, 2009, Chief Deputy Hendershott of MCSO called Sgt. Rich Johnson about filing a case against Judge Donahoe.609 Chief Deputy Hendershott told Sgt. Johnson that they needed it done “now.”610 MCSO Sgt. Brandon Luth, Sgt. Johnson and Deputy Chief Young called Aubuchon on the afternoon of December 8, 2009, to ask her what was going on and what they needed to charge.611 Aubuchon stated they needed a Form 4, a DR (departmental report) and a probable cause statement.612 Aubuchon told the MCSO officers she wanted to charge bribery and related charges.613 Sgt. Luth did not know what to write.614 Sgt. Luth’s orders were to put the case together and accompany Detective Cooning to “walk it throught” that evening.615

389. Later in the afternoon of December 8, 2009, Aubuchon, Chief Young, Sgt. Luth, Sgt. Johnson and Chief Hendershott met.616 Chief Hendershott told them about the racketeering lawsuit, and that they thought Judge Donahoe was going to throw MCAO off all County investigations.617 Chief Hendershott said that he had met with Thomas, Aubuchon, and Sheriff Arpaio, and that Sheriff Arpaio came up with the idea of charging the judge.618 Chief Hendershott told Sgt. Luth to use as the material for the Form 4, or probable cause (“PC”) statement, a complaint that the Chief Deputy had submitted to the Commission on Judicial Conduct against Judge Donahoe.619 Chief Hendershott printed off his complaint and wrote the charges on it. 620 At the hearing in this case, Hendershott was unable to describe any criminal conduct by Judge Donahoe.621

390. Sgt. Luth drafted the PC statement using Chief Deputy Hendershott’s judicial complaint622 at Aubuchon’s direction.623 The PC statement addresses Judge Donahoe’s:

a.alleged conflict of interest;

  1. his failure to take action against Supervisor Stapley about alleged disclosure of grand jury information;

c.problems with the Sheriff’s Department transporting prisoners to court;

  1. bias against the Sheriff’s Office;

e.setting a hearing about a motion to remove MCAO from prosecuting cases against MCBOS and County Management.

The PC statement is substantially about perceived difficulties MCSO was having with Judge Donahoe, but not about crimes he may have committed.

391. Sgt. Johnson called MCSO’s dispatch unit and obtained a Departmental Report number for the case.624 At about 5:00 p.m., Sgt. Luth took the Donahoe charging documents to Aubuchon. She read them. She said that “it worked for her.”625 Aubuchon signed the complaint as Deputy County Attorney.

392. Aubuchon attempted to have an investigator from MCAO file the direct complaint in Superior Court in the late afternoon or early evening of December 8, 2009. Aubuchon assigned the task of filing the direct complaint to MCAO investigator Lt. Richard Hargus.626 Lt. Hargus then asked MCAO Detective Timothy Cooning to meet an MCAO clerk in front of the court at 5:30 p.m.627 Det. Cooning did so, and the clerk handed him the Donahoe file. Cooning read the file, returned to his office, and informed Lt. Hargus that he felt uncomfortable swearing to the truthfulness of the complaint against Donahoe because he had not investigated the case.628 Cooning also was uncomfortable signing the probable cause statement because it was unclear what crimes had been committed and who had investigated them.629

393. Lt. Hargus told his superior, Commander Stribling, that Lt. Hargus and Detective Cooning did not want to file the complaint because there was no probable cause to support it.630 Commander Stribling agreed that none of his detectives should be put in the position of walking through a complaint on a sitting Superior Court judge when he knew nothing about the investigation that led up to the filing of the complaint.631 The commissioner assigned to the evening court might ask the detective questions, and the detective would not know what to say.

Categories : Uncategorized
Comments Comments Off on More excerpts from the proposed findings filed by Bar Counsel
Dec
19

Closing arguments and proposed findings filed in Thomas case

Posted by: | Comments Comments Off on Closing arguments and proposed findings filed in Thomas case

Proposed findings submitted by Bar Counsel included assertions that Thomas and Aubuchon could not have reasonably believed there was probable cause to charge Judge Donahoe with crimes. Based on the facts set forth above, there was no evidence Judge Donahoe committed any acts that corresponded with any elements of the crimes charged. To the extent Thomas and Aubuchon claim they did believe there was probable cause, that claim is either incredible or is so unreasonable that no ordinarily prudent person could possibly have come to the same conclusion. … [T]he purpose of charging Judge Donahoe was to retaliate against him for actions he had taken earlier, in particular the removal of MCAO from the investigation of Court Tower matters in February 2009. Judge Donahoe’s ruling on the Court Tower matter was the subject of a special action that Thomas and Aubuchon filed, review of which was denied for the final time on December 1, 2009, eight days before they charged Judge Donahoe with felonies. … Thomas and Aubuchon engaged in conduct involving dishonesty, fraud, and deceit when they knowingly brought charges against Judge Donahoe that were false and made without any investigation or evidence.

In other areas of the proposed findings, Bar Counsel asserted: Aubuchon signed the direct complaint that she and Thomas filed against Judge Donahoe. The direct complaint, prepared by Aubuchon, contained a signature line for a “complainant” from MCSO. Detective Gabe Almanza signed the document as “complainant” and did so under oath. Detective Almanza had not conducted any investigation into alleged criminal conduct by Judge Donahoe. Thomas and Aubuchon knew that the criminal charges they brought against Judge Donahoe were false, that Detective Almanza swore to a false complaint, and that a complaint is a sworn document as defined by A.R.S. § 13-1701. Therefore Thomas and Aubuchon are criminally accountable for the conduct of Detective Almanza because they knowingly caused him to sign and file a false sworn document and/or they ratified his conduct after he had signed the complaint. Thomas and Aubuchon committed perjury because they acted with the culpable mental state to engage in perjury and did so through the acts of another. Accordingly, they are criminally responsible under A.R.S. § 13-303 for the acts of another. By committing perjury, Thomas and Aubuchon violated ER 8.4(b).

For more information on Andrew Thomas, I’d encourage you to visit the website of author Daniel Horne and check out his book, Accidental Felons.

Categories : Uncategorized
Comments Comments Off on Closing arguments and proposed findings filed in Thomas case
Dec
31

A great example of how NOT to conduct yourself in court

Posted by: | Comments Comments Off on A great example of how NOT to conduct yourself in court

Categories : Uncategorized
Comments Comments Off on A great example of how NOT to conduct yourself in court
Nov
20

Maricopa County Attorney may add acquitted Chandler police officer to his officer integrity database

Posted by: | Comments Comments Off on Maricopa County Attorney may add acquitted Chandler police officer to his officer integrity database

Chandler police officer Tom Lovejoy was acquitted earlier this year after Maricopa County Attorney Andrew Thomas and Sherriff Joe Arpaio prosecuted him for animal cruelty after his dog died in a tragic accident. Obviously displeased with the outcome of his publicity stunt guised as a criminal prosecution, Andy Thomas is now considering adding Office Lovejoy to a blacklist for police officers who have integrity issues.
Lovejoy has stated that it is his belief that the measure is being considered by Thomas as retaliation for having lost the criminal case. In response, Thomas office claims that Lovejoy is being considered for the list based on an allegation that he and numerous other cops improperly used an official computer database to research information. Curiously, Lovejoy is the only officer from that investigation that is being contemplated for the blacklist.
The list contains the names of officer who have various issues in the backgrounds pertaining to their credibility. If an officer is listed and they are expected to be called as a witness in a case being prosecuted by the county attorney, the information pertaining to the officer is usually provided to the judge who will then determine whether the defense attorney will be entitled to view it.

Categories : Uncategorized
Comments Comments Off on Maricopa County Attorney may add acquitted Chandler police officer to his officer integrity database
Nov
16

Frank Bernal sentenced to 27.5 years in prison

Posted by: | Comments Comments Off on Frank Bernal sentenced to 27.5 years in prison

City of Phoenix law enforcement officers have expressed thier gratitute to the prosecutors office for their efforts in convicting a defendant who used a gun to fire bullets at 2 policemen in October of last year.
Then 22 year old defendant is named Frank Bernal and the court imposed a sentence of 27.5 years in the state prison. According to the police officers, Mr. Bernal fired five times at Officers Shane Figueroa and Brent Freyberger while the three men were located in an alley located in West Phoenix. Fortunatley, niether of the officers were shot and no injures were suffered. The officers were able to arrest the defendant after they chased him on foot. Deputy Maricopa County Attorney Gina Godbehere justified the long sentence on the basis that the defednat was trying to kill the officers. She claims that Mr. Bernal stated ‘I should have killed you,’ to one of the police officers when the apprehended him after the chase. Mr. Beranal allegedly also made reference in superior court while being sentencned abuot lookingh forward to visiting his friends in prison. Officers from the agency invovled in the incident were very pleased with the way the case was prosecuted by the county attorney’s office.
Please feel free to contact Phoenix Criminal Defense Attorney Joshua S. Davidson if you or a loved one is facing a shooting or assault related charge in Phoenix.

Categories : Uncategorized
Comments Comments Off on Frank Bernal sentenced to 27.5 years in prison
Nov
16

Phoenix Attorney Joshua Davison is pleased to announce the launching of his domestic violence defense website

Posted by: | Comments Comments Off on Phoenix Attorney Joshua Davison is pleased to announce the launching of his domestic violence defense website

While serving as a felony prosecutor in the family violence bureau of the maricopa county attorney’s office, Joshua S. Davidson was responsible for numerous cases invovling all levels of domestic violence. He is now a Phoenix Domestic Violence Attorney who will aggressively fight to protect your rights if you or a loved one has been charged with a domestic violence case in Phoenix.

Categories : Uncategorized
Comments Comments Off on Phoenix Attorney Joshua Davison is pleased to announce the launching of his domestic violence defense website
Nov
16

Phoenix Criminal Defense Attorney Joshua S. Davidson announces new sex crimes defense website

Posted by: | Comments Comments Off on Phoenix Criminal Defense Attorney Joshua S. Davidson announces new sex crimes defense website


As a felony proesutor working for the county attorney’s offce, Joshua S. Davidson was assigned to the sex crimes unit where he prosecuted cases involving allegations of child molestation, sexual conduct with a minor, indecent exposure, and sexual assault or rape.  Please visit his new Phoenix Sex Crimes Defense website to get more information about how he can help put his experience to work for you if you are facing any sex crimes charges in Phoenix.

Categories : Uncategorized
Comments Comments Off on Phoenix Criminal Defense Attorney Joshua S. Davidson announces new sex crimes defense website

Disclaimer

The Arizona Defense Law Blog is published by Phoenix DUI and criminal defense attorney Joshua S. Davidson. Nothing on this website is intended to create an Attorney-Client relationship and the information provided herein is for general information purposes only.

Admin

Contact Us

Law Offices of Joshua S. Davidson, PLC (480) 248-7022