Archive for Grand Jury

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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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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May
05

How felony charges are filed in Arizona

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Many clients often express confusion regarding the process by which felony cases are brought to court in Arizona.  I recently encountered the following article entitled guidelines for sexual misconduct and boundary violation cases (Arizona Board of Nursing) which provides a good explanation.

A criminal case is charged by either the grand jury or a criminal complaint. If a case is charged
by the grand jury, the prosecutor presents evidence to the grand jurors. The grand jury issues a
“true bill,” indicating that a crime has been committed and the defendant is the perpetrator. The
grand jury proceedings remain secret until the “true bill”/indictment is issued. The grand jury
indictment is then filed in superior court and is contained in the defendant’s court file.

The state may file a criminal complaint. The complaint is filed under oath by a peace officer
alleging the offense. Complaints are usually filed in city court.

After the offense is charged, the defendant is then serviced with a criminal summons to appear in
court. A summons is the preferred method as opposed to an arrest warrant. Rule 3.1(b), Ariz. R.
Crim. P. If the defendant fails to honor the summons, the trial court issues a warrant for the
defendant’s arrest.

The defendant makes an initial appearance before a magistrate. Rule 4.2, Ariz. R. Crim. P. If
the defendant fails to honor the summons, the trial court issues a warrant for the defendant’s
arrest.

The defendant makes an initial appearance before a magistrate. Rule 4.2, Ariz. R. Crim. P. The
magistrate informs the defendant of the charges against him/her, determines the defendant’s
release, and appoints counsel if the defendant is eligible. A defendant who is charged by
complaint is entitled to a preliminary hearing for a determination of probable cause. Rules 4.2
and 5.2, Ariz. R. Crim. P. The defendant charged by indictment is not entitled to a preliminary
hearing because the grand jurors made a finding of probable cause prior to their issuance of the
“true bill.”

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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