Arizona Criminal Law & Sex Crimes Post

There were a couple of interesting articles in New York Times about criminal justice in America. The first one was on how Texas governor Rick Perry, with the exception of the death penalty, is a champion of sentencing and criminal justice reform: 

“He has done more good than any other governor we’ve ever had,” said Jeff L. Blackburn, chief counsel of the Innocence Project of Texas. “He approaches criminal justice issues like a lay person rather than like a prosecutor or judge, which makes him open-minded and willing to embarrass the system. Unless, of course, it involves the death penalty.

("Perry Displays Varied Stance Toward Crime" by Deborah Sontag)

Gov. Perry's willingness to embrace reform is notable considering another I article I read in yesterday's New York Times regarding ineffective assistance of counsel and plea bargaining. Should defendants be given a new trial if their attorney gave them horribly mistaken advice?:

In the context of trials, it has long been established that defendants who can show that incompetent work by their lawyers probably affected the outcome are entitled to new trials. Plea bargaining, on the other hand, “remained all but unregulated, a free market that sometimes resembled a Turkish bazaar,” Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania, wrote recently in The California Law Review.

("Supreme Court to Weigh Effects of Bad Plea Advice" by Adam Liptak)

The reason I find these two articles so interesting because they, in least between the lines, make the point that our courtrooms sometimes more resemble casinos than tribunals. Part of the reason for that is pop culture's lionization of defendants, and their defense lawyers, who turn down pleas- most especially members of organized crime- and win.  

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Andrew Thomas, the man who would be king, or at least Arizona's Attorney General, will testify today at the Arizona State Bar hearing that will determine his professional fate:

A former prosecutor who teamed up with Maricopa County Sheriff Joe Arpaio to make failed criminal cases against three county officials is scheduled to testify Wednesday about his role in pressing cases that critics say were trumped up...

If an ethics panel finds that Thomas violated professional rules of conduct, he could face a wide range of punishments, including an informal reprimand, censure, suspension or disbarment.

("Thomas scheduled to testify at ethics hearing" in Arizona Capitol Times)

The fact Mr. Thomas, if proven, faces these professional consequences is all well and good. But why is he not facing more, namely criminal prosecution? (see "Andrew Thomas Facing Disbarment: Is that enough?") I have read that the FBI is investigating Mr. Thomas, but the nature and extent of that investigation is not clear. And while the FBI may be investigating Mr. Thomas, there is absolutely no indication that the man who wanted to be Arizona's chief law enforcement officer is facing prosecution from state agencies.

This is about the saddest story I have ever read. The criminal justice system prosecuting underprivileged parents for enrolling their children in good schools ("20 Years in Prison for Sending Your Kids to the Wrong School? Inequality in School Systems Leads Parents to Big Risks" by Rania Khalek): 

There's a vast difference in quality among public school districts in the US--and parents who try to enroll their kids in better schools may face severe punishment....

Kelley Williams-Bolar, an African-American single mother living in the housing projects of Akron, Ohio.... she was convicted on two felony counts of tampering with court records and sentenced to 10 days in jail with three years probation for illegally enrolling her kids in the predominately white and higher-quality school district next door.

Ten days in custody, however, is no where near as bad as what another mother is facing:

Tanya McDowell, a homeless single mother from Bridgeport, Connecticut, was arrested for registering her 5-year-old son for kindergarten in the affluent school district of Norwalk by using the address of her son’s after-school babysitter, Ana Rebecca Marquez. McDowell is currently facing up to 20 years in prison.

I do not understand how we can claim to live in a modern, Western democracy when citizens like Ms. McDowell are prosecuted, but the Wall Street crooks who almost bankrupted, and still may do so, our nation walk free and unhindered.

In case anyone who reads this blog knows of an underprivileged American who facing felony charges in Arizona for enrolling their children in a good school, please let me know.

There is a very sad story out of New York where a man, Rayon McIntosh, recently released from prison got into a video taped altercation while working at McDonalds. New York prosecutors want to charge Mr. McIntosh with what would be the equivalent of aggravated assault in Arizona. 

Rayon McIntosh appeared in Manhattan Criminal Court yesterday to face assault and weapons charges in the Greenwich Village beatdown seen round the Net. "My son is a loving individual - not a criminal," said the 52-year-old mom, who did not give her name. "He wasn't walking the streets and looking for a fight or trying to rob somebody. He was working." 

McIntosh, 31, spent more than a decade behind bars in the 2000 slaying of a classmate. In the incident last Thursday at the Mickey D's on W. Third St., he apparently snapped when Denise Darbeau and Rachel Edwards, both 24, allegedly lobbed a barrage of insults at him and co-workers.

Michael Joseph, who was also working that night, testified that one of the women yelled at a third employee: "F--k you! I hope you get deported." When the two women jumped over the counter, he said, McIntosh grabbed a metal rod and started hitting the two. Darbeau suffered a fractured skull.

("Mom of burger flipper caught on video beating two McDonald's customers defends son" by Trevor Kapp) 

To me, the most important part of this story is not the sensational and blood curdling details; it is not whether Mr. McIntosh was justified or not, but the fact that in America, there is no such thing as "paying your debt to society" and moving on with your life. As Sasha Abramsky wrote in the Slate Magazine story "Prisons and a permanent underclass": 

In devastating detail in Daedalus, the sociologists Bruce Western of Harvard and Becky Pettit of the University of Washington have shown how poverty creates prisoners and how prisons in turn fuel poverty, not just for individuals but for entire demographic groups. Crunching the numbers, they concluded that once a person has been incarcerated, the experience limits their earning power and their ability to climb out of poverty even decades after their release.

Not only do the prisoners themselves face the economic consequences of having served time, but their children do as well:

Western and Pettit found that after being out of prison for 20 years, less than one-quarter of ex-cons who haven't finished high school were able to rise above the bottom 20 percent of income earners, a far lower percentage than for high school dropouts who don't go to prison. They conclude that the ex-cons end up passing on their economic handicap, and by extension the propensity of ending up behind bars, to their children and their children's children in turn. As evidence, they cite recent surveys indicating children of prisoners are more likely to live in poverty...

I don't know what will happen to Mr. McIntosh. I can only hope, despite the fact he already served time for a violent crime, is not automatically convicted because of that fact. 

Not very people are aware of the fact, but there was very important decision for Arizona Bankruptcy courts. In a decision called In re Veal (09-14808), the Bankruptcy Appellate Panel of the Ninth Circuit overturned Arizona Bankruptcy Judge Randolph Haines when that panel held:

[W]e determine that the record does not support the bankruptcy court's finding that Wells Fargo had standing... in AHMSI's claim objection appeal, the bankruptcy court did not make findings necessary to determine AHMSI's standing as a person entitled to enforce the Veals' obligations...

For those who are unfamiliar with recent developments in the rash of foreclosure's in recent years, mortgage lenders who were originated loans were transferring the deeds of trust, or mortgage, separately from the notes obligating the debtors. When some of these loans became delinquent, the loan servicer was foreclosing on the properties. But in many circumstances, however, there was a problem with the procedure the banks followed because they were not documenting the transactions properly.

The hearing comes as federal and state regulators are probing whether financial institutions improperly filed foreclosure documents amid a rush to process them. Bank of America, JPMorgan Chase and Ally Financial's GMAC (GMA) Mortgage division, which collectively service $6.4 trillion in mortgages, all are under investigation.

("Robo-Signing Foreclosure Mess: Bank of America Vows to Do Better" by Danny King) 

A friend of mine who does a lot of bankruptcy work even told me that banks were deliberately falsifying mortgage documents and filing those false documents with the court. He also tells me the bankruptcy courts, US Trustee's Office, FBI, and Obama Administration do not care for the simple reason big banks are too powerful. As I had written many times before, it appears there are different rules for ordinary Americans and Wall Street big banks. 

The importance of the In re Veal case is that is the first time anyone has held the fire to the feet of banks. Despite that fact and the clear holding of the B.A.P., it does not appear that all Arizona bankruptcy judges are forcing banks to follow the law when foreclosing on a person's home. 

The Arizona Senate tried help consumers by passing SB 1259 "foreclosure defense law". While the Senate passed the bill, the State House has not. Why not I don't know. Nevada is working on a similar law with more teeth: Nevada bill 284 even permits incarceration for failure to comply. Nevada's Attorney General also filed an extensive complaint in United States District Court against major banks and the foreclosure disaster. 

What would be even better is if Congress would pass a law to overturn the United States Supreme Court's decison in Nobleman. In that case, the Supreme Court ruled that a homeowner could not cram-down, or reduce the principle to market value, of a debtor's primary residence. Despite some effort by Congress to overturn that terrible decision, Congress did not do so because, that's right, the Big Bank lobby in Washington, D.C.: 

President Barack Obama called on Congress in February to give federal bankruptcy judges more power to modify the terms of mortgages for at least some homeowners in bankruptcy proceedings... The legislation also has powerful foes. In particular, it is strongly opposed by the banking industry.

("Battle on the Home Front-A proposal to modify mortgages in bankruptcy fails in Congress, but proponents say it's the missing weapon in fighting foreclosures" by Steven Seidenberg)

I don't know what is the saddest feature of this mess, that Congress would listen to the deep pockets of Wall Street Big Banks over consumers, or the fact the media did not give this story any attention. 

It was the case that turned an unknown former DEA agent, Joe Arpaio, into the Sheriff of Maricopa County. It is the Buddhist Temple murder case, in which:

[James] Doody was convicted of the slayings of six priests, a nun and two helpers during a robbery at the Wat Promkunaram temple west of Phoenix. The bodies were found arranged in a circle, and all had been shot in the head. Doody, who was 17 at the time of the killings, was sentenced to 281 years in prison after he was convicted of murder, armed robbery and other charges in the slayings. He maintained that he's innocent.

(see "Prosecutors Mull Possible Retrial in 1991 Murders" by Jacques Billeaud)

Despite that confession, the Ninth Circuit of Court Appeals overturned the conviction because they ruled the confession was coerced by the police: 

A full panel of the 9th Circuit overturned the conviction of a man who confessed as a teen to participating in the 1991 murders of nine people, including six Buddhist monks, at an Arizona temple. The Seattle panel said Johnathan Doody's confession had been coerced "after nearly 13 hours of relentless overnight questioning ... by a tag team of officers...

The panel "held that nearly thirteen hours of relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of that teen, rendering his confession involuntary."

(see "Teen's Conviction in Temple Murders Reversed" by Elizabeth Banicki)

Prosecutors took the case to the United States Supreme Court, but that court just ruled the Ninth Circuit did not make a mistake and thus, the confession is not admissible. Prosecutors will not decide if they want to retry Mr. Moody without the confession in evidence. 

Prosecutors in Arizona were expected to announce Tuesday whether a man convicted of killing nine people at a Buddhist temple will be retried. The decision will come after the U.S. Supreme Court on Tuesday refused to overturn a decision that threw out his confession.

My own feeling on this case is that while I am very happy the Supreme Court upheld the idea that coerced confessions have no place in our system of justice, the whole Miranda and voluntariness analysis is overly complicated and self-defeating. Maybe, as I wrote before in "The Miranda Myth: Why It's Time to Change Miranda" it would more sense to exclude all confessions, coerced and voluntary alike, made to the police, but allow the prosecution to call the defendant as a witness in its case in chief. 

Since the Wall Street meltdown of 2009, there has been quite a bit of speculation concerning the cause of the meltdown. One thing that is certain is that banks were pushing exorbitant loans beyond the means of consumers.

Most of the information on that point is that while banks should have known better than give expensive loans- backed by the American tax payer-to consumers, banks did nothing deceptive. For example, according to a story by Hugh Son, Dawn Kopecki and Donal Griffin of Bloomberg News "BofA May Face HUD Fraud Claims for Soured Countrywide Loans":

Bank of America Corp. should face fraud proceedings after its Countrywide unit submitted faulty data to back up claims for reimbursement on federally insured mortgages...

“Countrywide did not properly verify, analyze, or support borrowers’ employment and income, source of funds to close, liabilities and credit information,” Kelly [Anderson, compliance auditor] wrote in the audit. “This noncompliance occurred because Countrywide’s underwriters did not exercise due diligence in underwriting the loans.”

That viewpoint, however, that all it was only a lack of diligence but not malfeasance, may not be entirely correct. As Michael Hudson writes in "Countrywide protected fraudsters by silencing whistleblowers, say former employees": 

By intercepting the documents before they were sliced by the shredder, the investigators were able to uncover what they believed was evidence that branch employees had used scissors, tape and Wite-Out to create fake bank statements, inflated property appraisals and other phony paperwork. Inside the heaps of paper, for example, they found mock-ups that indicated to investigators that workers had, as a matter of routine, literally cut and pasted the address for one home onto an appraisal for a completely different piece of property.

Rolling Stone writer Matt Taibbi also wrote a great article called, simply and appropriately enough: "Is the SEC Covering Up Wall Street Crimes?". I have included Mr. Taibbi's introduction to his article because it is probably the best piece of writing I have seen in a decade: 

Imagine a world in which a man who is repeatedly investigated for a string of serious crimes, but never prosecuted, has his slate wiped clean every time the cops fail to make a case. ...

This is a different world, one far friendlier to lawbreakers, where even the suspicion of wrongdoing gets wiped from the record.

That, it now appears, is exactly how the Securities and Exchange Commission has been treating the Wall Street criminals who cratered the global economy a few years back

So far, no one, not the FBI, US Trustee, US Attorneys' Office, nor the Obama Justice Department has thought of doing anything more than starting civil proceedings against big banks and Wall Street. But considering the damage these bad loans did, and the fact the American consumer had to rescue them, why shouldn't criminal charges be in order?

The Wall Street meltdown was the most destructive event since the September 11 attacks. Why shouldn't our nation's response be just as purposeful? If the Obama Administration won't do anything, maybe there is a state attorney general who will step in and do what the federal government isn't willing to. What I am thinking of is how Eliot Spitzer, New York Attorney General in 2001, investigated Wall Street and Merrill Lynch when the Bush Administration was unwilling to do so ("Eliot Spitzer: Wall Street's Top Cop"). 

Wall Street would never be the same. Spitzer opened an investigation that in just a few months began fundamentally reshaping America's financial markets. Analysts, Spitzer would show, were doctoring their reports--which the public relies on for stock information--to win business for their banks' investment arms or to downgrade companies that didn't play ball.

Is there anyone in America willing to take on Wall Street crimes? Sadly, so far the answer is no. 

Donald Lapre, the infamous Phoenix based TV pitchman, committed suicide while in custody in a private prison complex in Florence. He was in custody on federal fraud charges. As Eddi Treviz reports in today's Arizona Republic "Phoenix infomercial pitchman Donald Lapre found dead":  

U.S. Marshals said Donald Lapre, a Phoenix-based infomercial pitchman, was found dead in his cell Sunday at a federal-contract facility in Florence. Lapre was being held on fraud charges linked to his vitamin-selling business. He was arrested in Tempe earlier this year. Lapre was found about 8:30 a.m., unresponsive in an apparent suicide attempt, said Matt Hershey, supervisory deputy U.S. Marshal.

Federal officials have not said which private facility it was or who was running it. My well-founded suspicion is that it was a Corrections Corporation of America facility. If so, this is not the first death of an inmate at CCA. See "The ACLU suing Corrections Corp. of America-Organization claims violence is out of control at the Idaho Correctional Center":

The American Civil Liberties Union is suing state prison officials and a private company, claiming violence is so rampant at the Idaho Correctional Center that it's known as "gladiator school" among inmates... 

The lawsuit says Idaho's only private prison is extraordinarily violent, with guards deliberately exposing inmates to brutal beatings from other prisoners as a management tool. The group contends the prison then denies injured inmates medical care to save money and hide the extent of injuries.

In fact, it seems that CCA guards at the facility were taping fights among inmates "Idaho prison guards 'filmed watching inmate attack'": 

Prison surveillance cameras in Idaho have captured footage of one inmate beating another prisoner, while guards looked on, AP news agency has reported. The man being attacked, Hanni Elabed, appears to bang on a guard station window for help, the video obtained by AP shows, but guards do not intervene.

Also, at least nine deaths occurred at a CCA facility in Eloy, Arizona. See "Officials Hid Truth of Immigrant Deaths in Jail." 

My hope is that these deaths, tragic and preventable, put pressure on our leaders to do the obvious and necessary thing: ban private prisons.