Archive for Courts

Dec
25

Posting an “Appearance Bond”

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Frequently asked questions about bonds and pretrial release in Arizona

 

What is an Appearance Bond?

Posting bond

An appearance bond, also known as a bail bond (bond) allows a person (the defendant) who is in custody (jail) to be released pending further court appearances. The purpose of the appearance bond is to guarantee the arrested person’s appearance at a time and place specified by the court. The amount of the bail bond varies with the seriousness of the charge and is set by the court.

Is it always necessary to post a bond?

No. Under certain conditions, the court will release a defendant without bond. The court may accept the defendant’s promise to appear at a time and place specified by the court. This is known as being released “Own Recognizance” and is typically seen in cases where people are charged with a DUI in Scottsdale, Arizona.   A defendant may also be released upon another person’s (designated by the court) promise to ensure the defendant’s appearance as required by the court. This is called a “Third Party Release.”

What will the court accept as bond?

The court will accept cash for the full dollar amount of the bond.  Most courts will accept cash, certified money orders, or cashier checks; however, not all courts accept personal checks, business checks, or credit cards. Contact the court or jail fort detailed information. Courts also accept paper bonds posted by bail bond agencies.

Who can post bond?

Everyone can post a bond paid in cash for the person who is charged with the crime.  Bail bond companies are able to file paper bonds which basically require them to pay in cash if the defendant thereafter fails to appear or otherwise violates the terms of their release.

What happens if the defendant fails to appear as ordered?

The court will schedule a bond forfeiture hearing and all parties involved will be notified of the date and time. Depending on the outcome of the hearing, the court:

A. May order the bond forfeited;

B. May also order a warrant for the defendant’s arrest:

C. May allow the defendant another chance to appear.

If a bond is forfeited, can the person who posted the bond get their money back?

No, so be sure to keep this in mind before posting a bond on someone else’s behalf.

What happens to collateral given to a bail bond agent should a defendant fail to appear and be court orders the bond forfeited?

The court will order the cash value of the bond paid by the bail bond company. Property given as collateral can be sold by bonding companies to provide cash for the bond, if necessary. Any contract regarding the collateral and/or cash deposits is between the bonding company and the person obtaining the bond.  The court cannot and will not intervene.

What happens if a defendant appears as ordered?

A. The court may order the bond be returned (exonerated) to the bond poster. Once the judge orders exoneration, the court prepares to refund a cash bond to the bond poster or provides written clearance to be given to a bail bond company. Once clearance is provided, the bail bond company initiates the release of collateral; or,

B. If the defendant posted the bond, the court may order that the bond be converted to pay fines, fees, surcharges, or restitution on the case at hand and/or other cases involving the defendant. The court does not need the defendant’s consent to order the conversion: or,

C. The court may order the bond be converted to fines fees, surcharges, or restitution on the case at hand and/or other cases the defendant may have IF the person, who posted the bond, not the defendant; agrees to the bond conversion; or,

D. The court may order the bond remain in effect until the defendant’s next appearance.

After the bond has been released, the bonding company should return title to the collateral used to secure the bond. You may need to supply the bonding company with a copy of the court order releasing the bond.

Definitions:

Bond Poster – Person who posts an appearance bond

Collateral – Property or titles given by a person to a bail bond agent who then posts the bond.

Convert – Use of the bond money to pay what the defendant was ordered by the court to pay. The order could include victim restitution, fines and surcharges, attorney fees, or jail fees

Defendant – Person charged with a criminal act.

Exonerate – Return of bond money to the bond poster.

Forfeit – Bond money is turned over to the city; county or state by the judge’s order.

Paper bond – The paper given to the court by the bail bond agent showing that collateral was given.

Be careful! The form used when bond is posted may have several options that allow the court to use the money to “Pay for the monetary obligations owed on this case and other cases this defendant may have in this court.” Please read the form carefully and only mark those statements that you agree with; you cannot change your mind later.

Categories : Criminal Law
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Jun
02

Thomas and Arpaio – a history of abuse

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In his notice of claim, the attorney for Judge Donahoe gave an account of the other well documented cases where the two officials abused the power of their offices for political gain:

This is  far  from the first  time Thomas and Arpaio have abused their power and authority  by  retaliating  against political  opponents  or  helping  and  encouraging  their allies  do  so.  In  fact,  they  have  a  long  established  custom,  pattern,  and  practice  of doing this.

A stunning example of  this arrogant abuse of power was shown  in  the manner in which Arpaio and Thomas treated the  transfer to Yavapai County Attorney, Sheila Polk,  of  the  investigation  into  various  County  officials  after  conflict  of  interest charges were made  against Thomas.  Sheriff Arpaio,  particularly,  grew  increasingly unhappy with  Polk’s  handling  of the matters,  specifically  her  rightful  resistance  to issuing  overly  broad  subpoenas  that  she  believed were  nothing more  than  “fishing expeditions.”  Once Polk demonstrated that she was “too independent” for the  likes of Arpaio  and Thomas, Thomas  simply  took  the  case back  to  be  handled  by  his office, despite the conflict of  interest.

Polk  later  characterized  Thomas’  and  Arpaio’s  abuses  of  power  as “totalitarianism,”  and  noted  that:  “Our power,  granted  to  us  by  the  people,  is  not  a personal  tool  to  target political enemies or avenge perceived wrongs.”  MCSO Chief Deputy  Hendershott,  not  surprisingly,  responded  to  Polk’s  comments  by  doing precisely what  she  cautioned against:  he  claimed that she,  too,  was  now part of  the alleged  “conspiracy”  and  should  be  investigated  by  the  FBI  for  hindering  Sheriff Arpaio’s corruption investigations!

Arpaio  and  Thomas  have  a  history  of  working  against  their  political opponents,  including  state  legislators  and  the  judiciary.  Several  years  ago,  Arpaio and Thomas  joined  to  form  an  anti-corruption  task  force,  called  Operation MACE. The  purpose,  ironically,  was  to  root  out  abuses  of the  public  trust.  The  first  target was  the  Maricopa  County  Community  College  System.  They  seized  hundreds  of boxes of  records and alleged that money appeared to be missing.  But nothing further happened with the  investigation.  In fact,  the  first  indictments from Operation MACE had nothing  to  do  with  the  community colleges.  Instead,  they  brought petty charges against  a  former  state  senator  from  Yuma,  Russ  Jones,  based  on  activity  during  a 2006 election.  The same allegations had been made against Jones during the election, and  were  dismissed  by  the  Arizona  Supreme  Court.  Jones  eventually  lost  the election.  And yet, Arpaio and Thomas brought the  same charges, again, alleging that Jones  presented  false  objects  for  filing  and  willfully  concealed  his  activities.  Not surprisingly, a trial court quickly dismissed the charges.

Arizona’s  Attorney  General,  Terry  Goddard,  has  also  been  the  subject  of investigation.  A  host  of  press  releases  were  issued  at  the  beginning  of  the investigation,  “evidence”  was  distributed  to  the  media,  and  allegations  were  made that  the Attorney General’s  office was  stonewalling.  Not  surprisingly,  even  after  4 years, there have been no  indictments or charges.

In another  instance,  in the dead of night,  the Sheriffs “Selective Enforcement Unit” pulled Mike Lacey and Jim Larkin from  their homes,  arresting them on a petty misdemeanor charge of publishing  in  their newspaper,  the Phoenix New  Times,  false grand  jury  subpoenas  that Thomas  and Arpaio  knew were  unlawful.  In  a  stunning retaliatory assault on the First Amendment, Arpaio and Thomas pursued this political prosecution  solely  in  retribution  for  articles  critical  of  them  that  the  paper  had published over the years.  The arrest, done on the pretext that the paper violated some non-applicable  statute,  generated  a  deafening  public  outrage  at  the  abuse  of power and process.  This time,  even Arpaio’s charges were  dropped,  the  Special Prosecutor who  spearheaded the  investigation was  fired,  and  all  involved,  including  the Sheriff, ran for cover, denying any and all  responsibility for ordering the arrests.

More  recently,  Daniel  Pochoda,  the  Arizona  director  of the  American  civil Liberties Union  (ACLU) was  acquitted on a charge of misdemeanor trespassing after he  was  arrested  and  prosecuted  for  his  mere  presence  at  an  immigration-related demonstration at a local furniture store.  Mr.  Pochoda was on the scene to meet with a client.  He  was  returning  to  his  car,  not  having  participated  in  the  demonstration, when four  Sheriffs deputies arrested him.  This  stunning abuse of power took a jury less than half  a day to hear and decide:  not guilty.

A SWAT  Team style  raid on the home of Dr. Sandra Dowling,  the Maricopa County School Superintendent, was  followed  by  indictment on baseless  charges  that she  allegedly  embezzled  or misused  $3.5  million  in  public  funds.  The  24  count felony  indictment was  later  dismissed with prejudice.  Though  she  was  vindicated, Arpaio and Thomas had succeeded in ousting her and closing the Pappas Schools: her reputation ruined, her life’s work demeaned and denigrated.

These instances of  abuse of  power, as horrifying as  they are, pale somewhat in comparison  to  the  latest  round  of baseless  retaliatory  investigations  and  suits,  both civil  and criminal,  that Thomas, Arpaio and  their minions have brought against other elected  officials,  County  management,  and  now  members  of  the  judiciary  – all designed for  no  other purpose  than  to  intimidate and punish  those  that disagree with their viewpoints.  This escalation of evil, this reign of  terror,  is  inexcusable.

If you or a loved one is being wrongfully prosecuted in Phoenix, contact attorney Joshua Davidson today.

Categories : Politics
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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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Jun
02

The Court Tower Project and Thomas’ misguided investigation

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Judge Donahoe’s attorney recounted the genesis of prosecutor Thomas’ retaliation against Judge Donahoe:

Thomas,  incensed by what he  considered  to  be  a usurpation of his  power,  not to  mention  the  cuts  to  his  budget,  both  real  and  threatened  by  the  BOS,  enlisted Arpaio and the  two  targeted a County project – they urged the BOS  to  scrap plans for the  long-planned  and  saved-for $347 million Downtown Court Tower.  This  project had  been  in  the  planning  stages  for  12  years;  money  had  been  put  aside  for  its construction  over  that  time,  and  the  BOS  refused  to  scrap  the  project.  Thomas  and Arpaio responded by launching a criminal investigation into  the BOS’ approval of  the Court Tower and Thomas  issued an astoundingly  broad grand jury subpoena seeking years worth of information about  the  project  from  the County.  The BOS  hired Tom Irvine  to  represent  its  interests.  He  moved  to  quash  the  subpoena  largely  on  the grounds  that  Thomas  had  conflicts  in  investigating  the  BOS regarding  the  Court Tower after  he  had  given  it  advice  on  the  same  topic.  In  true Alice  in  Wonderland fashion,  Thomas  then  announced  that  Irvine,  too,  was  now  part  of their  criminal investigation.

Judge  Donahoe,  as  Presiding  Criminal  Judge,  heard  the  matter  and  in February  2009  ruled  that Thomas  had  a  conflict  in  his  dealings with  the County  in that  he was  now  criminally  investigating a client  (the County and BOS)  that  he  had previously  given  legal  advice  to  on  the  same  topic.  Judge  Donahoe  disqualified Thomas,  quashed  the  Subpoena Duces Tecum, denied Thomas’ motion  to  disqualify Irvine, and his motion to assign the matter to  an out-of-county  judge. One month  later, Judge Donahoe denied Thomas’ request  that Stapley be held in  criminal  contempt of court  for  disclosing  information  relating  to  a  grand jury by sharing the Judge’s February 2009 ruling (which he  learned of  through his position as Supervisor)  with  his  criminal  defense  attorney  in  the  case  brought  against  him by Thomas.  Judge Donahoe declined  to  hold Stapley  in  contempt,  finding  that his  right to  counsel  in  the  criminal matter  trumped  any  secrecy  that  should  be  accorded  that ruling.  He also granted the BOS’ request to allow the ruling to be made public.

In  a  motion  for  reconsideration,  Thomas  alleged  for  the  first  time  that  a conflict existed  that  required  Judge Donahoe  to  disqualify himself.  He claimed  that the BOS’  lawyers, Tom  Irvine  and Ed Novak,  also  represented  the  Superior Court  in matters  involving  the  Court  Tower  and  that  Judge  Donahoe  should  have  disclosed that conflict and disqualified himself.  Judge Donahoe rightly denied the motion for a number of  reasons:  as  an employee of  the State, he  had no  conflict with the County’s project;  he  did  not  know,  before  the motion  for  reconsideration,  that Mr.  Irvine  and Mr. Novak  had  any  involvement with  the Court Tower;  he  knew  that Mr.  Irvine did not  represent  him  or  his  employer  in  the  Court  Tower matter;  he  had  and  has  no interest  in  or  involvement  with  the  Court  Tower  project  and  played  no  role  in  its design,  construction, or  funding,  nor had  he  ever discussed any aspect of  the project with Mr.  Irvine or Mr. Novak outside  any  court  hearing.  Thomas challenged Judge Donahoe’s  ruling  in  first  the  Court  of Appeals  and  later  the  Supreme Court.  Both declined to review the ruling.

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

Categories : Politics
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Jun
02

Notice of claim continued

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Judge Donahoe’s attorney continued:

Even  before  the  attack  on  Judge  Donahoe  and  the  judiciary,  County government  was  awash  in  political  intrigue,  retaliatory  lawsuits,  and vindictive criminal  investigations.  But  the  judges  and  the  Superior  Court  had  managed  to escape  the worst of the  fallout  from  the  acrimony  between County management and Thomas  and  Arpaio.  Disputes  over  the  anti-immigration  policies  of  the  County Attorney and  the Sheriff, budgetary constraints imposed by  the BOS on those offices, and fights over control of  litigation all coincided to  create a perfect storm of  antipathy and  contention  between  and  among  these  officials,  which  ultimately  resulted  in  the indictment of Don Stapley, Chairman of  the BOS.  Thomas, aided in his  investigation by Arpaio, brought 118  felony  counts against him for  alleged disclosure violations  in materials he  is  required  to  file  as  an elected official.  The BOS,  citing  irreconcilable conflicts with Thomas,  stripped his office of  the  right to  represent the County  in civil matters  (and  part  of his  budget)  and  set up  a  separate  civil  division  to  handle  those cases.

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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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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Jun
11

Lawsuit brought by sheriff and county attorney dismissed

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A superior court judge granted a motion for summary judgment filed by the maricopa county board of supervisors and dismissed a well publicized lawsuit in which the sheriff and the county attorney sought $24 million in special funds the encumbered by the Board.  The Court issued a lengy writted decision which included the following discussion of the legal claims asserted by the Board of Supervisors:

Defendants disagree and challenge the Plaintiffs’ arguments on a number of fronts. First, they claim that each of the encumbered funds is a special revenue fund, not a custodial or fiduciary fund, and that the Legislature is free to alter their use by enacting any new law so long
as it is constitutional. In passing the Bill, the Legislature altered the use and purpose of the encumbered funds, thereby allowing the funds to be used by the County to meet its obligations to the State. Because the Bill provided that counties could transfer the specified amounts from “any source of county revenue designated by the county,” the Bill was a reconciliation Bill, not a general appropriations law, and the Board’s decision to encumber these statutory funds was legal. To that end, because these statutory funds are public funds, they are subject to the Legislature’s power to amend their appropriation.

Second, Defendants argue that both the Sheriff’s Dept. and County Attorney have previously taken positions in another matter concerning the transfer to the State of over $2 million from one of the encumbered funds (the County Sheriff’s Inmate Services Fund) that is wholly inconsistent with the position now being asserted on the same issue in this case. Specifically, the 2008 Legislature passed the HURF Act, which required the County to pay the State $4,681,991, computed based on the distribution of the Highway Revenue Formula (“HURF”). The HURF Act contained the same provision which allowed the Board to take monies from any source of county revenues designated by the county in order to satisfy the Act’s legislative mandate.  Before the Board had to make decisions on which sources of monies could be utilized to meet the requirements of the HURF Act, the Sheriff’s Office asked the Board to transfer over $2 million from the Inmate Services Fund, which is one of the statutory funds that Plaintiffs argue in our case can’t be used for any purpose other than the purpose authorized by the fund’s enabling statute. Moreover, Defendants argue that the County Attorney’s Office approved the legality of encumbering this money from the Inmate Services Fund as partial payment for the
County’s liability under the HURF Act. In other words, the Plaintiffs, just a few months before filing this lawsuit on grounds that such a transfer was illegal because it sought to spend money from these statutory funds in derogation of the specific and limited purpose for which these funds can be used, requested that the Board approve the payment mechanism they now challenge.

Third, Defendants argue that the County Attorney should be precluded from bringing the claims asserted as it essentially equates to a lawyer suing his own client for an act he approved. The County Attorney is the Board’s legal advisor. In this case, the County Attorney, without seeking or receiving a waiver to bring the action, has sued the Board (its client) for encumbering these statutory funds in order to fulfill the mandated contributions to the State despite having previously approved an identical transfer last August in another matter. Defendants contend that the Arizona Rules of Professional Conduct prohibit such a suit by an attorney against a client under these circumstances.

Fourth, Defendants argue that Plaintiffs lack standing as they cannot establish a distinct and palpable injury, only a speculative fear of some injury that could possibly happen in the future. Further, Defendants argue that no harm has occurred because the Board of Supervisors simply followed the law set forth by the Legislature and, in doing so, at all times acted legally.

Fifth, Defendants assert that neither Plaintiff has the power to bring this suit under the law. The Sheriff is not a jural entity and lacks statutory authority to file such an action. The County Attorney also lacks standing to bring such an action in his own name, under the Declaratory Judgments Act, or under A.R.S. §11-641(B). A.R..S. §11-641(B) only applies to cases where a board of supervisors acts without legal authority, which Defendants contend is not the case here. Otherwise, it is the Board of Supervisors, not the County Attorney, that is vested with the power to direct and control the prosecution and defense of suits to which the County is a
party. Further, 11-641(B) creates power to seek injunction or refund of an illegal payment of money, and Defendants contend there is no “payment” of public funds in the legislation at issue.

Additionally, Defendants assert that nothing in the Declaratory Judgments Act, A.R.S. §12-1831, et seq., confers upon either Plaintiff the ability to sue in their official capacities, especially where neither Plaintiff can establish concrete real interests at stake. The statutes creating these funds make no mention of the Plaintiffs’ right to exclusively manage or spend money in the funds or establishes for Plaintiffs’ benefit any irrevocable entitlement to those funds. Moreover, The Board of Supervisors voted to transfer monies in accounts other than the six the Plaintiffs complain of. Since Plaintiffs are not authorized to use or control funds from those other accounts, they have no “right” in such funds and cannot seek declaratory relief concerning the propriety of transferring them. The State also argues that in no event can it be sued by Plaintiffs for declaratory relief since Count Two only alleges that the Board’s acts were illegal and seeks a declaratory judgment only against the Board.

Sixth, Defendants argue that Plaintiffs’ claims are barred by laches as Defendants have waited until late in the fiscal year, with resulting great prejudice to Defendants, to change their position regarding the Board’s encumbrance of a statutory fund to fulfill the mandated legislative contribution. In essence, by waiting until 75% of the budget year had been completed before suit was filed, Defendants contend that Plaintiffs have placed the County in the virtually impossible position of having to look to alternative funding sources at the very last minute for the full $24 million assessment.

Seventh, Defendants believe that this lawsuit is barred by A.R.S. §12-1802, the anti-injunction statute, which provides that an injunction shall not be granted to prevent the exercise of a public office in a lawful manner by the person in possession. The effect of the statute is to prevent courts from interfering by injunction with the exercise of a public official’s duties, if those duties were exercised in a lawful manner and within statutory authority.  Here, Defendants argue that because the Board acted lawfully in encumbering the statutory funds, the Court cannot interfere with the Board’s duties by granting injunctive relief. Otherwise, Plaintiffs would be able to effectively veto, through litigation, decisions by the Board that amount to a lawful exercise of their authority.
Eighth, Defendants argue that the Legislature has the power to change the statutes that established these special funds. This means the Legislature can, by its actions, repeal or modify the language of the statutes that limits use of the funds to a specific purpose. Thus, when the Bill authorized the County to encumber any source of County revenue to comply with the new statute, the Legislature for fiscal year 2008-2009 removed all previous limitations on the funds.
Otherwise, the language of the Act is unavoidably inconsistent with the enabling statutes establishing these funds. In that event, case law suggests that the more recent statute governs and the inconsistent language in the older statute is repealed.

Lastly, Defendants contend that the Bill did not violate Article 9, Section 22, which requires any act that imposes a new tax, fee, or assessment providing for a net increase in state revenue to be passed by a two-thirds supermajority of both houses of the Legislature. According to Defendants, the transfers being made in this matter did not create an increase in state revenue because all of the monies that the Board encumbered were previously lawfully obtained and deposited in these funds pursuant to Arizona statute and authority delegated to Maricopa County. 

Thus, the transfer of these monies operates merely as a reallocation of monies already within the possession of the State through Maricopa County and does not result in an increase in State revenues.

In ruling against the sheriff and county attorney, the court held:

The Court agrees with a number of Defendants’ arguments as to why summary judgment should be entered in their favor.  It is not necessary for purposes of this decision to discuss every argument raised by Defendants, but the Court will address those that in the Court’s view are case
dispositive and clearly entitle Defendants to judgment as a matter of law.

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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
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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