Archive for Attorney

Jan
01

State of Arizona v. Lovejoy

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This not guilty verdict was including among a number of high profile cases entrusted to now disgraced former prosecutor Lisa Aubuchon.  Judge Neil Wake recounts in his recent ruling denying the Defendant’s motion for summary judgement:

Lovejoy’s case went to a bench trial in front of a Justice of the Peace on August 15, 2008. After Aubuchon presented the State’s case, Lovejoy’s defense attorney moved for a directed verdict: Judge, the statute as we’ve been talking about all morning requires the culpable mental state of recklessly. And for the State to prove that, they have to show that Sergeant Lovejoy was aware of a substantial and unjustifiable risk, i.e., the dog was in the car, and that if he left him in there, he would die or become injured. . . . They have shown that he left the car “ the dog in the car. No one is disputing that. They haven’t shown . . . that he knew the dog was back there, but disregarded the risk that he might die. (Doc. 93-1 at 56.) In response, Aubuchon argued, We don’t have to show that he knowingly left the dog in the car. . . . *** We are not arguing that he knew he left the dog in the car, because we would have charged it that way. We’re arguing that he’s reckless. And it is his very conduct and the choices he made that shows he substantially disregarded that risk. Everybody knows that in August in Arizona it is hot in a car. And a trained K-9 officer should be on heightened awareness about what will happen if he forgets the dog in the car. (Doc. 93-1 at 57.) At the close of argument, the Court announced without elaboration, “At this time I’m going to deny the directed verdict.” (Doc. 93-1 at 62.) Lovejoy then put on his defense, after which the Court stated: “All of these so-called distractions [presented by the State as evidence of recklessness] . . . don’t equal “ it doesn’t equal to me to be recklessness. State did not meet their “ their burden here and I find [Lovejoy] not guilty.”

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Jan
01

County Attorney Andrew Thomas’ Decision to take Lovejoy to trial

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As recounted in Judge Wake’s recent ruling:

Andrew Thomas, then the Maricopa County Attorney, assigned Leonard Ruiz, third in command at the County Attorney’s Office and chief of the trial division, to supervise Lovejoy’s case. Ruiz was never told why he received the assignment. He could not recall another instance of a person with his seniority at the County Attorney’s Office being asked to assist in prosecuting a misdemeanor animal cruelty offense. Deputy County Attorney Anthony Church, who specializes in animal cruelty cases, received the assignment to handle day-to-day tasks associated with the Lovejoy prosecution. Soon after he received the assignment, Church formed the opinion that the case against Lovejoy was weak: [F]rom all the information I had gathered from the police report, [Lovejoy] cared very much about the animal, and I had a hard time believing that he would consciously recognize that the dog was in the back of the car and leave the dog there intentionally or ‚or, you know, understanding that he would be coming back but knowing the dog was back there.

On March 7, 2008, Church and Ruiz jointly requested an “incident review.” An incident review involves submitting the case to a board of senior attorneys who evaluate whether the case should go forward. Church and Ruiz’s written request summarized Simonson’s findings and added, A defense interview with Detective Rob Simonson took place in early February. According to Detective Simonson there is no evidence, which he can point toward, to show that Lovejoy did not simply forget that the dog was in the car. Detective Simonson told the defense attorney the only evidence that exists to prove the reckless mindset is that Lovejoy put the dog into the car and Lovejoy failed to take the dog out of the car, causing the dog’s death. (Doc. 101-2 at 4.) Church and Ruiz then quoted the animal cruelty statute under which Lovejoy was charged (see p. 5, above) and the definition of “recklessly” (see p. 8, above) and concluded: Recklessness requires that the person actually be “aware” of the risk being created by his conduct. In re William G., 192 Ariz. 208, 963 P. 2d 287 (App. 1997). This case needs to be set for incident review to determine whether we have probable cause to prosecute this case and whether we can ethically prosecute this case. (Id. at 5 (emphasis in original).) On March 11, 2008, another Deputy County Attorney, Jeff Trudgian, submitted a memo to Chief Deputy Philip J. MacDonell regarding the Lovejoy case. The memo begins, “Mr. Thomas requested research on the issue of whether “awareness’ of the risk, as needed for a finding of recklessness, can entail forgetfulness “ specifically, as applied to a K-9 police officer with specialized training regarding animal handling.” (Id. at 8.) Trudgian analyzed various cases and the relevant statutes and concluded, The problem is the element of “conscious disregard” that the results would occur or the circumstance exists. It cannot be argued that a person who truly forgot an animal in a vehicle consciously disregarded a known risk. . . .  . . . [T]he facts appear legally insufficient for conviction. (Id. at 10 (emphasis in original).)

On March 28, 2008, yet another Deputy County Attorney, Linda Van Brakel, submitted a memo titled “Lovejoy analysis” to Jim Beene, whose position is unidentified. The memo quotes Church and Ruiz’s statement of facts (contained in their incident review request) and then analyzes the relevant law as applied to those facts. Similar to Trudgian’s memo, Van Brakel’s states, Lovejoy knew the dog was in the car because he placed him there, but the evidence shows he completely forgot about him. In other words, although Lovejoy was no doubt aware of the risk of leaving a dog in a hot car that long, he did not consciously disregard that risk. He simply forgot. That may be negligent, but it is probably not criminally reckless. (Id. at 27 (emphasis in original).) Van Brakel considered but rejected a recklessness argument based on sleep deprivation: Lovejoy should have realized that he was sleep-deprived and might forget about the dog. However, police officers working graveyard shifts, swing shi[f]ts, off-duty jobs, and getting called out at all hours, are commonly sleep deprived and this might be considered normal for a police officer. In other words, loading the dog in the car under the circumstances probably did not create a substantial risk of harm constituting a gross “flagrant and extreme” deviation from the conduct of a police officer or K9 officer. Leaving him in the car, of course, would create a substantial risk of harm constituting a gross deviation from the conduct of a K9 officer, but we lack the “conscious disregard” of such a risk. (Id.) Van Brakel ultimately concluded, “I do not believe there is a reasonable likelihood that it can be proven beyond a reasonable doubt that Lovejoy acted with criminal recklessness, causing Bandit’s death.” (Id. at 31.) The record before the Court does not reveal whether County Attorney Thomas reviewed any of this material. However, he turned down Church and Ruiz’s incident review request.

In a less than shocking turn of events, Andrew Thomas disregarded all of the advice he was given about prosecuting Officer Lovejoy and turned the case over to his ever-faithful servant, Lisa Aubuchon (who is facing currently facing disciplinary proceedings with her former boss).

Contact a Phoenix Criminal Lawyer today if you are facing criminal charges.

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Jan
01

More excerpts from Judge Wake’s ruling in the Lovejoy – Arpaio case

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Judge wake goes on to recount the factual allegations regarding the Sheriff’s news conference:

While Lovejoy was driving in, Arpaio held a press conference announcing that Lovejoy had been arrested. Lovejoy claims he learned of his supposed arrest when a reporter reached him on his cell phone while still driving to the station. When Lovejoy arrived at the station, Summers and Simonson arrested him (without handcuffs) and moved him through the processing, booking, and initial appearance process. An unspecified Sheriff’s Office employee asked the commissioner presiding at the initial appearance to set bail, but the commissioner refused and released Lovejoy. That same day, the Sheriff’s Office issued a news release‚regarding the arrest. Arpaio testified at his deposition that he reviewed it and approved‚the news release “[t]o be disseminated to the media.” … The news release quotes Arpaio as saying that the decision to book Lovejoy into jail was “difficult” but “Lovejoy must be treated like anyone else in similar circumstances. I have a strict policy on animal abuse and neglect whereby offenders are booked into jail.’” … At his deposition, Arpaio confirmed that he made this statement. The news release further quotes Arpaio as saying, “Our investigation determined that Bandit’s death was not an intentional act on Lovejoy’s part, but it was reckless and for that, Lovejoy must be charged.’” … When asked about this statement at his deposition, Arpaio replied, “That’s what the investigate‚ investigators said, I presume.”  He was then asked, “You knew when you stepped in front of the cameras [at the press conference] to announce that [Lovejoy] was being charged and put into jail, booked into jail, that [he] had not done anything intentional to hurt that poor dog, didn’t you?” Arpaio responded, “Well, I’m not going to get into the law, whether it’s intentional or not.”…

It doesn’t take a high profile case like this for a rush to judgement to damage one’s rights.  If you or a loved one are being investigated for a criminal offense, contact a Scottsdale Criminal Attorney today.

Categories : Criminal Law, Politics
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Jun
02

Judge files notice of claim against sheriff and former county attorney

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An attorney representing Maricopa County Superior Court Judge Gary Donahoe has filed a notice of claim against a number of current and former government officials including the sheriff and former prosecutor Andrew Thomas.  Here is an excerpt from the well-drafted letter authored by acclaimed attorney Michael Manning:

The Racketeering suit was an  ineptly  drafted  rant,  the  silly and  sophomoric  sputtering  of  Lisa  Aubuchon, Thomas’  central  sycophant.  Though  inept,  it  dripped  with  disdain  and disappointment  for  a  judiciary  that  dared  to  disagree.  Eight  days  later,  not  fully satisfied with the  sullying effects of  their Racketeering  slanders,  and at  the urging of Arpaio,  Thomas  escalated  their offense  by  filing  a criminal  complaint against  Judge Donahoe,  charging  him with  three  felonies:  hindering  prosecution,  obstructing justice, and bribery of  a public official!

Judge  Donahoe’s  alleged  “crime”:  he  issued  rulings  adverse  to  Arpaio  and Thomas.  The  Racketeering  suit  and  criminal  charges  against  Judge  Donahoe were the  pitiful  product of an  ugly  alliance  between Thomas  and Arpaio  to  exact  revenge for  those  adverse  rulings,  to  cause  Judge  Donahoe  to  remove  himself from  hearing those cases  and  to  strike  fear  into other members of  the judiciary should they dare  to disappoint Thomas and Arpaio by ruling against them.  Their message was clear:  rule against  us  and  we  will  flex  the  muscle  of our  offices  and  press  the  weight  of the criminal  justice  system  against  you  – and  no  process,  politics,  press,  or  rule  of law will  stand  in our way.  Even  seasoned and  cynical  political  observers and  those with some  ideological  alliance with Arpaio  and Thomas were  stunned by  the  third world-like  audacity  of these  elected  officials.  But,  of course,  these  were more  than  just elected officials – they were  law  enforcement officials  acting  in malevolent  concert, launching  a  nakedly  baseless  attack  on  the  judiciary  – and  with  such  transparent maliciousness.

Not  surprisingly,  given  the  sophomoric  lawyering  and  the  baseless  nature  of the  allegations,  Thomas  and  Arpaio were  forced  to  abandon  both  the  Racketeering suit  and  the  criminal  complaint.  But,  the  dismissals  were  not  really  voluntary  and there was no  apology  for  Judge Donahoe.  These dismissals came only after a Tucson judge disqualified Thomas from prosecuting Supervisor Wilcox because of a number of conflicts of interest and  then dismissed the  indictment against her.  In  that  ruling, the judge noted that Thomas acted unethically,  retaliated against those who disagreed with  him,  sought  political  advantage  by  prosecuting  those  who  oppose  him politically,  and  allied  himself with  Sheriff Arpaio,  who  “misused  the  power  of his office”  by  targeting opponents with criminal  investigations.  These damning  findings by  the  judge memorialized what most  people  knew:  that  Thomas  and Arpaio  had mounted  their  destructive  assault  on  Judge  Donahoe  to  retaliate,  intimidate,  and punish.

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

Categories : Politics
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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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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.

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