Arizona Criminal Law & Sex Crimes Post

Fred Knadler is in jail for what police claim is soliciting hitmen to kill his wife and an employee. He is the multimillionare founder of Arizona Shower Door Company. So if he has so much money, why has the Court appointed him a public defender? See this link and video to find out what I have to say about it:

"The family law court has seized all his assets and it's off limits," Phoenix criminal defense attorney Vladimir Gagic said.

In the five year old murder trial of Steven DeMocker, accused of killing his wife Carol Kennedy, the trial judge refused to dismiss the case where defense attorneys alleged prosecutorial misconduct. The defense alleged the prosecution, the Yavapai County Attorneys' Office, obtained confidential defense documents (see "Judge denies motion to dismiss 5-year-old Prescott murder case" by Dennis Wagner): 

A judge in the marathon murder trial of Prescott financier Steven DeMocker denied a defense motion to dismiss the case, concluding that Yavapai County investigators did not engage in prosecutorial misconduct when they obtained confidential defense documents.

In a 57-page ruling issued Thursday, Judge Gary Donahoe said privileged records divulging DeMocker’s defense strategy were unsealed due to a series of mistakes, and the revelations did not benefit prosecutors.

So what exactly is prosecutorial misconduct? It is a term that comes up quite a bit in criminal trial, both on TV and in real life, Jodi Arias for example. All I can tell you for my own experience is the same exact thing as the Supreme Court definition of pornography: I know it when I see it. In a recent case, the US Supreme Court refused to take on the issue of prosecutorial misconduct and the "Hyde Amendment":

A jury acquitted Shaygan and a Miami federal judge later awarded the doctor $602,000 under a federal law called the Hyde Amendment, which allows judges to sanction prosecutors for taking positions that are "vexatious, frivolous or in bad faith."

The judge found that prosecutors acted in bad faith by pursuing new charges and secretly recording Shaygan's defense team. The steps were taken in retribution after Shaygan's attorney tried to keep statements the doctor made to investigators out of evidence, the judge found.

The judge called the prosecution's tactics "profoundly disturbing," adding that they raised "troubling issues about the integrity of those who wield enormous power over the people they prosecute."But the 11th U.S. Circuit Court of Appeals in Atlanta overturned the award, ruling that prosecutors have broad discretion under the doctrines of sovereign immunity and separation of powers.

("Supreme Court rejects appeal of prosecutorial misconduct case")

Ms. Arias has, either by sheer blind, dumb luck or incredible genius, placed the government on the horns of a dilemma. The government's case against Ms. Arias, for over 4 years leading up to her prosecution for first degree murder, was that she stole her grandfather's gun with the express intent of murdering Mr. Alexander and that Ms. Arias killed Mr. Alexander with that same weapon.Then, just a few days before trial started, the government changed its position because the medical examiner testimony was that Mr. Alexander died from multiple stab wounds. The gun shot came after Mr. Alexander was fatally wounded.

Thus the government faces the following dilemma: either Ms. Arias is truthful and accurate when she testified she shot Mr. Alexander first. In that case the government would be validating, at least implicitly, her testimony that she killed Mr. Alexander in self defense. Or the government has to explain why if Ms. Arias stole a gun to kill Mr. Alexander did he die from knife wounds?

So far the government has not explained its position with regard to the dilemma during the entire course of the 6 week trial. My suspicion is that the government will cravenly wait until closing argument to try to do so. The most likely explanation I have heard of so far from the peanut gallery is that Ms. Arias tried to shoot Mr. Alexander first but the weapon jammed. Then after knifing him 29 times, she shot him while he was already dying or even dead. See "Gun Jodi used jammed, forensic expert believes":

HLN’s Dr. Drew welcomed forensic crime scene expert Randolph Beasley to the show. Although Beasley has nothing to do with the Arias case, he knew both Alexander and Arias and gave his opinion on what he believed happened on that fateful day nearly five years ago.

 “To me, what makes sense on this case is that Jodi did not bring a knife to attack Travis,” he said. “She brought a gun. It's obvious she premeditated this. When she shot him in the bathroom when he's in the shower, the gun jammed, so she couldn't finish him off.”

He added, “When the gun jammed, she panicked. She had to go ahead and find a knife … and finished him off.”

The only problem with this explanation is that, as far as I know, Ms. Arias was never a Navy Seal. It is not easy to unjam a weapon. It takes quite a bit of training and skill to be able to do so. Pulling the trigger on a jammed weapon will not accomplish anything. It is even harder during a life and death struggle to have the presence of mind to forgo a jammed gun and reach for a knife, especially when the opponent is much larger and stronger.

Whether or not Ms. Arias was the aggressor or victim, whichever the case, if in fact she first tried to shoot Mr. Alexander and the gun jammed, she was then in a struggle for her life. I have a very hard time believing what will probably be the government's final argument: she stole the gun to kill him, when she tried to kill him, motivated by sexual jealousy, the gun jammed; then, while in a life and death struggle with Mr. Alexander, she put the gun to the side and stabbed him multiple times; and after he was mortally wounded she shot him once in the head. So far the overwhelming evidence is that Ms. Arias knew next to nothing about guns and was not some Nikita-esq femme fatal.

Of course, this all assumes the jury believes the government's assertion that Ms. Arias stole the weapon with which she shot Mr. Alexander. For a detailed criticism of this point, see the excellent post "Still in the Dark After Dark: “Pathological” Lying About The Gun(s)" by "Pitchforks". There is also quite a bit of good information at "You Could be Wrong".

For regular updates regarding the Jodi Arias trial, you can follow me on twitter @vlga and like my page on facebook. Pitchforks is also on twitter at PitchforksPost.

P.S. In response to all the comments and tweets that I have received along the lines of "premediation is just so obvious, etc...", I would suggest reading Nassim Taleb's wonderful book "Fooled by Randomness". "Black Swan" is also from Mr. Taleb and is much more famous but not nearly as good.  John Meynard Keynes, the economists of the 1930s who saved capitalism, wrote "A Treatise on Probability" that is along the same lines.

What I am specifically referring to is what Taleb and Keynes called decision making under uncertainty. No matter how much information we gather, we cannot know for sure what Ms. Arias was thinking in the moments leading up to her killing Mr. Alexander, and I doubt if Ms. Arias even knows for sure what she was thinking then. Figuring out what happened in the past is just as hard as predicting the future. Figuring out her state of mind is no easier than knowing what the price of gold will be in 50 years. We just don't know.

Under these sorts of conditions then, we resort to convention or what Keynes called heuristics. That is because even though we are operating under uncertainty, we still have the practical problem of deciding what to do in these sorts of cases. My position is that a thousand years of common law is pretty good convention, and it would dictate we do not find someone guilty of intent to kill without either direct evidence of premeditation or an overt act before the killing. The consequences of getting it wrong and convicting her of first degree murder are too great, much worse than being mistakenly too lenient and convicting her of murder in the second degree. 

As far as I am concerned, the only issue in the Jodi Arias trial is has the government proven premeditation. That of course, is important because if the government has not proven premeditation, they cannot convict her of murder in the first degree and thus the death penalty is off the table. And while the government has also alleged murder in the first degree by way of felony-murder, that allegation is so specious as not to even warrant a response.

The government has not proven premeditation, and in fact, could not do so under any circumstances. Without direct evidence, either a confession by Ms. Arias that she intended to kill Mr. Alexander, as in "I wanted to kill to him", or an overt act such as hiring a hit man or waiting in wait in ambush, the government cannot prove premeditation beyond a reasonable doubt. Note that I am not saying she did not intend to kill him or that there is not very good reason to suspect that she intended to kill him, just that the government will not be able to prove it beyond a reasonable doubt. And that has been clear since day one. Someone asked me on twitter a question along the lines of "she lied so she doesn't get the death penalty?". My answer, yes, exactly right. To paraphrase Lt. Kaffee from a "Few Good Men", it doesn't matter what we know; it only matters what we can prove.

Instead of proving premeditation with direct evidence, the government is trying to do so with circumstantial evidence. So far the attempt has been, with the most charitable interpretation possible, pathetic. While the law does not recognize a distinction between direct and circumstantial evidence, there is a jury instruction that says exactly that, the inference the government wishes the jury to draw from the circumstantial evidence is, dare I say, comically lacking.

If they could have proven the gun that Ms. Arias used to shoot Mr. Alexander was in fact stolen by Ms. Arias then that would be very good evidence of premeditation. But they have not done so; nor are is the government able to do so. On cross examination, the government has asked her number of questions regarding gas cans. This could be fruitful to the government's allegation of premeditation, but the prosecution has not closed the loop on this point.

In particular, my assumption is that there trying to prove Ms. Arias used gas cans to avoid being seen in Arizona at a gas station by either a witness or cameras. That, if true, would show planning of at least something. So why then didn't Mr. Prosecutor flat out ask Mr. Arias if that was her intent? Instead, he avoided asking her that question because of one thing: fear. Mr. Prosecutor is afraid she will have an answer for the question and the jury will believe her. So he is instead doing what trial lawyers have been trained to do, save the ultimate question for closing argument when the other side has no chance to contradict your argument.

Under all circumstances, such a approach is cowardly and craven. In the particular circumstance of this one in which a prosecutor's job is not to win per se but act as a "minister of justice", it is downright evil. When someone, anyone, as in Jodi Arias, is on trial for her life, she should be given every opportunity to directly answer all the government's accusations in her own voice directly to the prosecutor's face. It should then be up the jury to decide who to believe with all the facts before them. The jury should not be in the unfortunate position of deciding the fate of a person, as they are in now, without all the facts before them because the prosecutor was too afraid to ask the defendant the ultimate question.

But assume for the sake of argument she was asked that question and did not have a good answer for it. What was she planning? Was she planning on killing him since the moment she asked to borrow the gas cans in May, or since she left for her trip from California? If she was planning on killing him before she left on her trip, then why did she stay with him for 8 hours and have sex with him on the same day? Does that really sound like a plan on murdering Travis Alexander? I don't know, and even more more importantly, the government cannot answer these questions without speculation or guess work. The guesses may be reasonable and even probable, but that is not proof beyond a reasonable doubt, and certainly not proof enough to send Ms. Arias to death row.

As far as whether her testimony is believable, she was not untruthful in the sense she was deliberately testifying falsely. She believes what she is saying. While it may not be in fact what objectively happened, I have no doubt that she either always believed what she is saying since day one, or in the 5 years since Mr. Alexander's death has convinced herself of what she is saying is true (this is called the "narrative fallacy" made famous by Nasim Taleb in "The Black Swan"). By way of example, Sarah Palin says she doesn't believe in evolution and thinks the Earth is only 5000 years old. Those statements are nothing short of ridiculous, completely contracted by all scientific evidence, and obviously not true, but she is not a liar because she honestly thinks those are the facts.

As far as the numerous accusations she was being evasive or deliberately forgetful, in that regard her testimony is no worse than the typical police officer testifying on cross "I don't remember, I don't recall, or I don't know", something that I have personally experienced dozens of times.  

That being the case, it is obvious that the government overcharged her and should have accepted her offer to plead guilty to murder in the second degree some time ago. That way, the government could have avoided this silly fiasco that has hardly made Arizona look civilized and respectable, ie, "bull dog" or "mad dog" prosecution. Once the jury comes back with something less than a conviction for murder one, I hope media will aggressively question the Maricopa County Attorneys' Office why they wasted so much time and money on a wasted prosecution. I hope they will ask MCAO why did they refuse to accept Ms. Arias' plea to murder two with the hopes of garnering fame and attention? While nature may be "red in tooth and claw", do we want that to be the philosphy of our prosecutor's office?

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The Jodi Arias defense team will soon present its case and evidence and among other things, there is a lot of speculation about whether Jodi Arias herself will testify. But despite the fact that Ms. Arias has yet to testify, or even certain if she will, that has not stopped people from all over America, the world even, from have already come to the conclusion that Ms. Arias is in fact not just a murderer and a liar, but a psychopathic killer. For example, see "Inside The Mind Of Accused Murderer Jodi Arias" by David Lohr. 

...women like Arias often meet the criteria for both sociopathy or psychopathy, according to Wendler.

"The characteristics of psychopathy include disregard and violation of other people's feelings, wishes and rights," Wendler told HuffPost. "These individuals use deceitfulness and manipulation to obtain what they want (pleasure, profit, etc.). They are often called pathological liars. They are self-centered and show reckless disregard for the safety of others; they lack empathy towards their victims and have little or no remorse about their criminal actions."

What entitles anyone to conclude Ms. Arias is a psychopathic killer is beyond me. She may very well be a killer, a liar, and a psychopath, but the evidence of that last label is pitifully weak. For one thing, psychopaths are very rare, maybe something like 1 to 5% percent of the general population. One study found that only about 1.9% of women fall into the anti-social psychopath group ("Psychopathy among prisoners in England and Wales"). Keep in mind we are not talking about psychopaths in general but the much smaller subgroup of criminal or anti-social psychopaths. Second, the crowning definition of a psychopath is not just their willingness to lie, but their singular talent in being able to do so convincingly.

So far, the prosecution has presented a lot of evidence that Ms. Arias is not just a liar, but a terrible liar at that. The difference between between Ms. Arias' statements and demeanor with, for example Scott Peterson, is striking. According to the prosecution Ms. Arias has consistently changed her story from one version to the next, each seeming more impossible than the other. If in fact that is the case, that sounds like someone who is trying to get away from trouble and is terrible at doing so. That does not sound like a anti-social psychopath at all. 

Lying is something everyone does, especially to the police "officer, I was not driving that fast; officer, I stopped at that stop sign, I swear; officer, I only had two beers, etc...". People even lie to their doctor, risking their life for nothing more than not revealing an embarrassing secret. You are probably asking yourself so what? So what if Ms. Arias is lying, but is not a psychopath? The distinction is important because the fact that Ms. Arias may have lied to the police about what happened is very weak evidence she is guilty of murder, certainly very weak evidence of premeditated murder.  

Most people, even completely innocent people, when confronted with the stress of a hostile police investigation will not be completely truthful and will say things that are inconsistent, just like Ms. Arias has done so far. If, however, she is not just a liar but is in fact a psychopath, then the prosecution theory of premeditated first degree murder makes a whole lot more sense. Then the prosecution theory is not just "she's lying" but "but she is lying to cover up the premeditated murder and not just because she is scared and confused". If she was an anti-social psychopath, the story she told the police would have been much more convincing and rehearsed. But she is nothing more than an amatuer liar, hardly a criminal mastermind.

The fact that Ms. Arias may have lied to the police is evidence she lied to the police, not of first degree murder. Up to now, the State of Arizona has done of very good of proving she is guilty of the first accusation and innocent of the second. 

America is a nation under the burden of prisons. Far too many Americans, who ought not be in custody, are wasting their lives away in prison. We have the highest incarceration rate in the world, by far. The United States has 5% of the world's population, but 25% of the world's prison population. In other words, one in twenty people on Earth is an American, while 1 out of every 4 prisoners on Earth is an American. 

A recent article in The Economist magazine makes the point clearly with regard to Louisiana, or as they call it, “Louisiana Incarcerated” ("Louisiana’s prisons: Sheriffs’ delight, While local officials cash in, convicts lose out"): 

EVEN in a country with the world’s highest incarceration rate, Louisiana is extreme. The state imprisons 26% more people, on a per-capita basis, than the next-strictest state, Mississippi. Louisiana’s incarceration rate is almost six times Maine’s and seven times China’s.

How sad that a nation that calls itself "the land of the free" puts so many of its own citizens in prison and jail. We go around the world forcing "democracy" down the barrel of a smart bomb, but we do this to our own people? Why? The George Zimmerman vs. Trayvon Martin case is a perfect example of why, because it shows in crystal clear terms that social justice is incompatible with identity politics (see "Dharun Ravi Convicted of Cyber Hazing Tyler Clementi: A Masquerade of Justice"). 

I understand that many African Americans and others are concerned that George Zimmerman got away with murder, but in the putative quest for justice, ie, Rev. Sharpton and others, many, self-servingly at that, are doing far more harm than good.

The idea that Zimmerman is a racist murderer escaping justice will only push the public to support stricter and harsher laws and sentences. That, it turn, will put even more Americans in prison who ought not be there. And no single group bears that burden more than African American males. For all those who say they are concerned about racism, I wish they would step back and see the forest and not just the tree that is Zimmerman vs. Trayvon Martin.  

What will happen to Tammie Smith, the women who wanted to adopt Baby Gabriel from Elizabeth Johnson and Logan McQuery? Did she commit fraud? Did she have anything with Baby Gabriel's disappearance? Watch this interview to see what I think of the Tammie Smith trial.

Staci Lynn Barbosa and Jonathan Edward Vandergriff are accused of raping and murdering their one month old son in 2010. While the Mohave County Attorney's Office planned on seeking the death penalty against Mr. Vandergriff, they have now backed off that tactic.

As James King of the Phoenix New Times writes ("No Death Penalty For Bullhead City Couple Accused of Killing Newborn During "Brutal" Sexual Attack"): 

In the morning of June 15, 2010, police were called to Western Arizona Regional Medical Center's Emergency Room where the one-month-old baby was "fighting for his life." 

Police say they saw bruises and sores all over the baby's body and his eyes were red and swollen shut. Doctors then told police the baby had several broken ribs, a broken femur, was malnourished, dehydrated, and showed signs of sexual abuse and shaken baby syndrome.

At the time of the baby's death, Bullhead City Police Department spokeswoman Emily Montague told New Times it appeared the couple "raped" their own baby.

The story does not explicitly state why prosecutors are no longer seeking the death penalty against Mr. Vandergriff or why they never sought the death penalty against Ms. Barbosa in the first place. 

The Costa Concordia capsized and amid all the horror stories, this one takes the cake ("Rich tourists bribed way onto lifeboats"): 

It was women and children last as greedy crew members on the Costa Concordia sold seats on lifeboats to filthy-rich Russians — ignoring other passengers, even injured ones, stranded on the tilting decks.

As the cruise ship sank and its captain entertained a beautiful woman on the bridge, well-heeled Russians from first class were handing out fistfuls of cash to save themselves, London’s Sun newspaper reported, quoting eyewitness testimony to prosecutors.

“The disabled were left to fend for themselves,” said one witness.

Franca Anichini, a resident of Giglio Island who went to the shore to assist survivors, told German media, “I went to the boats as I saw them coming in, expecting to see women, children and the injured.”

“All I saw were healthy men and elegant women in evening gowns who were speaking Russian.”

Despite the cheap anti-Russian sentiment, the story makes in an important point, a point I don't think the NY Post intended to make however: just how far should the free market extend? If its true, as many neoliberals claim, that the free market uses supply/demand/price to efficiently allocate scarce resources, and nothing is scarcer than lifeboat seats on a sinking ship, then why shouldn't those seats be for sale to the highest bidder?

If someone wealthy can by better health care than someone poor, why shouldn't he be able to buy a lifeboat seat? Why shouldn't he be able to buy a seat for his dog even if another person drowns as a result? Why shouldn't he be able to buy a place for his Rolex collection even if everyone else on the ship drowns so long as he can outbid all of them?

These questions are an example of what David Harvey calls the "commodification of everything". Capitalism is great at producing commodities. But like when the only tool you have is a hammer, every problem is a nail. And that is what can happen: everything- cars, laptops, personal services, health care, and even seats on a life boat- are a commodity and for sale at the highest price.  

Assuming that we don't want lifeboat seats to be for sale to the highest bidder, what can we do about it? Is it now or should it be a crime? As you may imagine, in landlocked Arizona I have never seen a case in which something like this has happened. I just looked at the Arizona Revised Statutes and there does not seem to be a statute that would have outlawed bidding for lifeboat seats. Arguably, commercial bribery would apply if the act caused economic loss to the cruise ship line but that is unlikely the case. 

13-2605. Commercial bribery; classification; exception

A. A person commits commercial bribery if:

1. Such person confers any benefit on an employee without the consent of such employee's employer, corruptly intending that such benefit will influence the conduct of the employee in relation to the employer's commercial affairs, and the conduct of the employee causes economic loss to the employer.

2. While an employee of an employer such employee accepts any benefit from another person, corruptly intending that such benefit will influence his conduct in relation to the employer's commercial affairs, and such conduct causes economic loss to the employer or principal.

B. Commercial bribery is a class 5 felony if the value of the benefit is more than one thousand dollars. Commercial bribery is a class 6 felony if the value of the benefit is not more than one thousand dollars but not less than one hundred dollars. Commercial bribery is a class 1 misdemeanor if the value of the benefit is less than one hundred dollars.

C. This section shall not be construed to prohibit a person from recruiting an employee of another employer unless, pursuant to an agreement between such person and the employee that such employee engage in conduct which will cause economic loss to his employer, such employee engages in conduct while an employee of his original employer and such conduct causes economic loss to the employer.

Tyson Langley just came to Phoenix after being accused of a horrific double murder at a Phoenix smoke shop. What punishment should he face? Should he get the death penalty? Should he be tried as an adult? Should he get life in prison? These are all questions I asked, and answered some, with regard to another juvenile murder case just recently ("Braden Matthew Rockriver, 16 years old, to be Charged as Adult in Denna Strebe Case"). 

Langley allegedly killed Kenneth Matlock and Melinda Bowen and then shot Robert Troutman, who had a non-life-threatening hip wound.

For more information, see my interview above or read what I told ABC 15 and Angie Holdsworth ("Teen suspect in Peoria shooting back in the Valley"): 

Legal expert Vladimir Gagic, who is a defense attorney, said by statute the prosecutor has no choice but to charge the teen as an adult in this case.

"Anyone who is 15-years old who is involved in a violent crime is automatically charged as an adult," he said. "Being that he is 15-years old he has a better chance than say a 35-year-old of getting out. But based on what I've read and considering the heinous nature of the crime, it wouldn't surprise me if he spent the rest of his life in prison."

Langley invoked his right to remain silent. "It makes his case better that there is no confession," said Gagic "It is quite astonishing that someone 15-years old has the presence of mind to invoke his right to counsel."

There is a story in today's Arizona Republic on how the US Border Patrol will start to punish repeat border violators (Border Patrol to toughen policy on illegal immigrants): 

Now, a first-time offender faces different treatment than one caught two or three times. A fourth-time violator faces other consequences... In Southern California, the U.S. attorney's office doesn't participate in a widely used Border Patrol program that prosecutes even first-time offenders with misdemeanors punishable by up to six months in custody, opting instead to pursue only felonies for the most egregious cases, including serial border-crossers and criminals.

Whether or not this change in US Border Patrol policy will be enough is open to debate. Some lawmakers believe the only way to stop the flow of illegal immigrants into the United States is to remove the automatic birthright of anyone who is born in the United States (Republicans Eye Change to Birthright Citizenship). 

But now at least one prominent Republican lawmaker wants to change the 14th Amendment to the Constitution which grants American citizenship to anyone born on U.S. soil.

"Birthright citizenship I think is a mistake," Republican Sen. Lindsey Graham of South Carolina told Fox News last week. "We should change our Constitution and say if you come here illegally and you have a child, that child's automatically not a citizen."

While making this change may seem dramatic, it is not that unusual. I was born in France to legal residents but I never was a French citizen because my parents were not French residents for at least 5 years when I was born. Also, I have adult relatives born in Germany who are not still not German citizens.  I wonder if it's a coincidence that working class French and German citizens have a much higher standard of living than their American counterparts?  

One of the most common questions I get from defendants and from the family of defendants is "when will I get out of jail?". If the charges are severe enough, then the typical answer is not for a long time. That is different from other states, in particular Pennsylvania, which let out Jerry Sandusky. If Mr. Sandusky had been charged in Arizona, he would not have been released.

The reason is because of ARS 13-3961, which means that under certain circumstances, a defendant will be held non-bondable. The most common circumstances include when the charges are sex crimes against a minor and when the defendant is a illegal alien:  

A. A person who is in custody shall not be admitted to bail if the proof is evident or the presumption great that the person is guilty of the offense charged and the offense charged is one of the following:

1. A capital offense.

2. Sexual assault.

3. Sexual conduct with a minor who is under fifteen years of age.

4. Molestation of a child who is under fifteen years of age.

5. A serious felony offense if there is probable cause to believe that the person has entered or remained in the United States illegally...

While this is what the statute requires, it is not the end of the inquiry. In a case called Simpson v. Owens, the Arizona Court of Appeals held that "due process requires that a full and adversarial evidentiary hearing be conducted.” That means that even if the crime alleged falls under ARS 13-3961, there must be an evidentiary hearing to determine if the defendant is bondable. 

If the court then determines that bond is allowable, the defendant can leave the jail if he posts bail. If the judge orders a cash only bond, that means the defendant must post the entire bond in a cashier's check. If the judge orders a secured bond, that means the defendant must have either the cash available pay the entire bond, or enough security to secure the entire bond.

For example, if the bond is a $10,000 secured bond, the defendant, or his family, must have property worth at least $10,000 against which the bond is secured, like a car title loan. That is usually done through a bail bonds company that will also charge a 10% transaction fee. The transaction fee is not returned even if the defendant is found not guilty or the charges are dismissed. If the defendant fails to appear at his court hearings, the court can foreclose on the security instrument (repossess the car or foreclose on a house) after a civil bond forfeiture hearing. 

It goes without saying, the Joe Paterno and Penn State child molestation scandal has made a lot of news lately. And quite a few people have been willing to point the finger at Joe Paterno and the Penn State staff for not having stopped Sandusky earlier. As I wrote in my previous post, I believe much of the ire directed at Mr. Paterno is unfair. I do not believe, as so many have said and written, that Mr. Paterno's compass was pointing in the wrong direction. Having said that though, it may be time to consider the new law, or at least expansion of an old one, that would help child victims. What I have in mind is a law similar to the law that forces or permits doctors, therapists, and parents to report child molestation and child abuse (see Arizona Revised Statute 13-3620 Duty to report abuse).

However, this law would not be directed at doctors or professionals; it would be directed at all adults. Most importantly, it would be directed at the wives of child molesters. That is because the wives of child molesters almost always know about what their husbands are up to. In the Penn State child molestation case, there's a lot of reason to believe Mr. Sandusky's wife knew exactly what he was doing. In the 1998 bowl game Penn State went to, a child (victim #1) stayed in the same hotel room as Mr. Sandusky. And in another instance, victim #4 went to Mr. Sandusky's home and stayed for the night in the basement.  If it is in fact true that Mr. Sandusky has been a child molester for his entire adult life, I am next to certain his wife was aware of the fact.

My version of the law would be the following: "if you have good reason to believe that another adult is sexually abusing a minor, you must report it to the police within 24 hours or you will be prosecuted for failing to report that abuse". Basically, it would expand the definition of "person" ARS 13-3620 to include any adult and not just professionals and parents.  

While there is a long held tradition in American law that we should not force someone to defend another absent a particular duty- for example, police officers or parents of a child- and we do not want citizens spying on each other, the situation of child abuse is completely different. This is not about creating a police state to enforce ideological control. Child abuse is, almost by definition, secretive and next to impossible to discover. We simply have no other choice, and this law would be the least onerous way to protect abused children. 

Too many times wives and other family members who know what is happening do nothing because of the so-called "bystander effect". Other times, adults do not act because they have an interest in protecting the child molester. The best way to combat these hindrances to the reporting of child abuse is to force the reporting. And there is no better way to force somebody to act a certain way than to have the criminal law punish them if they do not.

This law would just be a simple recognition of the fact that many times people fail to do the right thing not because they are evil, but because they are acting under uncertainty. They do not have the playbook, or compass, to open up and figure out what to do next. They simply panic and, under these circumstances, they fall back to the behavior of least consequence: they do nothing. With this law, just as the "leaving the scene" law  (A.R.S. 28-663) instructs people what to do when they are under the much less stressful, but still stressful enough circumstance of a fender bender, people would know exactly what they need to do if they suspect child abuse. They call the police.  

Think Mark Goudeau was guilty of all the shootings in the Baseline Shooting cases? Then why, at least according Mr. Goudeau's defense attorney was ( see "Goudeau defense: Evidence lacking in 'Baseline Killer' case" by Michael Kiefer) there: 

- No evidence that he owned a gun or ammunition. No gun was even found. 

- No evidence that his car was seen in front of a victim's house before her death. 

- No footprints, no fingerprints, no body hairs.

 Further: 

He [the defense attorney] challenged the in-court identifications of Goudeau by victims and witnesses. He reminded the jury that the victims had given widely varied descriptions of their attacker, sizing him at 5 feet 4 inches to 6 feet 4 inches and everything in between.

The police claim they found evidence from the some of the victims at Mr. Goudeau's home, but that was only found after the third search of the house. The first two came up empty. I hope this is not a case where Mr. Goudeau was convicted simply because he has a violent criminal history, because of media coverage, and because of the fact many different allegations and events- in other words, boot strapping- were tried together. 

One of the things that most catches my eye is how differently Arizona treats a celebrity who gets a DUI in Arizona from other states, most notably what happens to a celebrity who gets a DUI in California. Recently, Scottsdale has been giving California a run for its money as the celebrity DUI capitol of the world.   A good example of the difference is what happened to Mel Gibson, Nikolai Khabibulin, and Charles Barkley.

According to media reports, when Charles Barkley was topped for a DUI in Scottsdale, his blood alcohol concentration was .149, which almost an extreme DUI. Former Phoenix Coyotes all-star golie Nikolai Khabibulin recently stopped his appeal of his Scottsdale DUI conviction, and he will serve his time, 30 days, in Scottsdale. His blood alcohol concentration was reported at .164.

Mark Grace has also been arrested for a DUI in Scottsdale, but his case is not yet complete. The point of all these examples is that police officers in the greater Phoenix area, in particular Scottsdale, do not show much mercy to DUI suspects, even famous athletes. And even a celebrity will serve time in jail. 

What about California? Also according to media reports his blood alcohol concentration was .12, well above the legal limit. Considering how strict Arizona is and the fact it does not show any leniency, surely California is no different and Mel Gibson went to jail too? No, he did not. In fact, all he got was a fine, 3 years probation, and alcohol screening classes. No wonder more actors and celebrities live in California than Arizona. 

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.

One of the interesting things about child pornography charges is the assumption that only men do it. In other words, many people think that only men engage in child molestation and that women would never, for whatever reasons, have child pornography in their possession.  Well, it seems that assumption is not particularly well-founded: 

A Swedish court on Tuesday convicted 23 women and one man of child pornography offenses in what investigators called a unique case because of the number of female perpetrators...

The court said the women received scores of sexually explicit video clips and photographs of children from the man and discussed them online with him. Some said they liked the images or shared sexual fantasies about the children, and one woman sent pornographic images of children to the man, the court said.

The material showed girls and boys of various ages, from toddlers to teenagers.

(From "Sweden: 23 women convicted of child pornography")

As odd as the female involvement in this case sounds, there are two important side notes to the story. First, while the possession of pornographic images was extensive, there was no allegation or evidence that any child was actually touched. In the broader context, and as I have written before "Should Mere Possession of Child Pornography Mean Decades in Prison?", we should rethink the idea that if someone posses child pornography that automatically means they will molest children given an opportunity. That reasoning, of course, is part of the reason behind the extremely stern prison sentences for possession of child pornography in Arizona. 

That leads me to the fact the sentences in this Sweden were remarkably light in comparison to Arizona: 

The Falu District Court gave the women, aged between 38 and 70, conditional sentences and fines ranging from 2,500 to 18,000 Swedish kronor ($380 to $2,700). It also sentenced a 43-year-old man to one year in prison for aggravated child pornography.

In contrast, in Arizona every count of sexual exploitation of a minor is presumptive 10 years in prison. That is why some defendants in Arizona get decades in prison for similar conduct to this story (see "Robert Thomas Flibotte Gets 90 years in Prison for Possessing Child Porn").

So who has it right, Europe or the US? While I certainly believe incarceration rates in the United States, and in Arizona in particular, are far too high, I also think Western Europe is too soft on crime. The European justice system is too soft because it is too individualistic. It determines punishment based exclusively on the effect on the individual and not society on the whole. In other words, Europe focuses exclusively on incapacitation, reform, and deterrence of a particular defendant, but ignores general deterrence in entirety. 

For example, Norway might sentence mass murderer Anders Breivik to only 21 years in prison (Norway shootings: Anders Breivik cannot get more than 21 years- Despite his mass killing spree, the maximum sentence Anders Breivik could be handed by a court is just 21 years.) The thinking in Europe is that 21 years is enough time to reform and deter Mr. Breivik from committing crime again. But what Europe does not realize is the message it sends to the public at large: while 21 years in custody may stop Anders Breivik from committing more crime, it is no where near enough punishment to deter future Anders Breiviks from thinking "I kill 90 children, spend 21 years in prison, and then come out as a celebrity? Sounds like a good deal to me." 

There is a very good article in yesterday's Arizona Republic by reporter Bob Ortega about Arizona's overly strict sentencing laws "Arizona prison sentences among toughest for many crimes". The basic point is that even though many people claim these sentencing laws make Arizona safer, no evidence supports that claim and, in fact, it may be bankrupting the state: 

Politically, that has been popular, but the practice carries a hefty price tag. This year, the state will spend more than $1 billion to keep prisoners behind bars, and that figure will balloon if Arizona carries out plans to build or contract for as many as 6,500 new prison beds over the next five years...

Nationally, crime rates have been falling for decades. Even with more convicted criminals on the street, many of these states have seen their crime rates fall as far or farther than in Arizona, where the prison population has climbed 50 percent over the past decade.

Unfortunately, despite the well intentioned effort of Rep. Cecil Ash to reform sentencing laws, too many people, both those with an economic interest and those without, dogmatically cling to the idea that more time is always better.  For an example, see the comment by "John Wayne" at ABC 15 KNXV's reprint of the Ortega article: "The prison industry also creates job for normal law abiding people." "Wayne" is essentially, and unintentionally as the term is not complimentary, pointing out what economists call "penal Keynesianism". 

To me, the idea that we should put people in custody and restrict the freedom of our nation's people to create jobs is absolutely vile. Is is especially vile when one considers how many hundreds of thousands of American servicemen died preserving personal freedom and liberty for our people.  All those Americans died in vain just so some people can make a buck? The profit motive should have no place in deciding who goes to prison and for how long. 

Is Jared Loughner competent to stand trial? How about Baby Gabriel's mother Elizabeth Johnson? 

New legislation allows the Arizona Dept. of Corrections to charge $25 for each adult visitor to an Arizona prison facility ("Inmate Visits Now Carry Added Cost in Arizona" by Erica Goode of the New York Times). 

New legislation allows the department to impose a $25 fee on adults who wish to visit inmates at any of the 15 prison complexes that house state prisoners. The one-time “background check fee” for visitors, believed to be the first of its kind in the nation, has angered prisoner advocacy groups and family members of inmates, who in many cases already shoulder the expense of traveling long distances to the remote areas where many prisons are located.

When I first heard about this proposal, it reminded me of how the Chinese government bills the families of executed convicts for the cost of the bullets (see "China injects 'humanity' into death sentence" by Cristian Segura). Of course, while not as cold-hearted as the Chinese, the AZ DOC fee is not meant for any reason other than to humiliate the family of the inmate.

The inmates will not pay this fee; the family of the inmate will pay it. And thus, the state of Arizona is trampling the fundamental precept of modern justice, that of individual responsibility.  What separates justice from oppression is not just our wish for freedom and peace; justice also requires us to distinguish between the guilty and the innocent, and to only punish the guilty. When we reject the notion of individual responsibility and instead impose collective responsibility, our system is as unjust as if our objective was tyranny. This fee will punish the family of the inmates for the simple reason they are the family of an inmate. It is guilt by association.

The distinction between individual and collective guilt is the reason why the Nuremberg Tribunal was so much more successful than the Treaty of Versailles. Instead of the punishing the entire nation of Germany (collective guilt) for Nazi crimes, the allies only punished individuals and organizations, like the SS, responsible for crimes. 

And while $25 may not seem like much, most inmates and their family are extremely poor, but in accordance with the neoliberal agenda, we are imposing a regressive tax on poverty. Instead of going to the movies or the department store, this money will now flow out of the real economy into a bloated government bureaucracy for no reason other to balance the AZ DOC paper budget. Regardless of what one may think of the moral propriety of the fee, I can't imagine anything thinks it's sensible to lesson consumer demand in the middle of a recession. Make no mistake: this fee is the economic equivalent of a recessionary consumption or sales tax in terrible economic circumstances. 

My hope is the Arizona legislature rethinks the fee for inmate visitation. I hope the legislature realizes that the goal of criminal justice system should not be the humiliation of inmates and their families. 

Which is more important, freeing the innocent or convicting the guilty? With all due deference to the rules of logic, I say both are more important because we cannot free the innocent unless we convict the guilty. 

There is a very famous comment by the English legal commentator Blackstone along the lines of "it is better to set free 10 guilty men than to convict one innocent man".  I remember the first time I heard that statement thinking to myself, as I am sure others have as well, what a wonderful sentiment that point embodied. On the face of it, it sounds very democratic and progressive. But now, after a few years working as a criminal defense attorney, I am not so sure that viewpoint is a good one.  While it may be inspiring and heartwarming, it may in fact be very harmful and destructive: that it, destructive to the rights of criminal defendants.  Is it better to set 10 guilty men free than to convict one innocent man?

As a first step, we need to determine what the objective of our criminal justice system is.  Is it justice? Is it revenge or retribution? Is it deterrance? I believe the answer is much less general than a nonspecific term like "justice".  The objective of our criminal justice system is simply about making our population behave a certain way under the least onerous terms possible. Our political system determines how we want people to behave, for example murder and rape are illegal, and the criminal system sets about creating the right incentives for people to do what we want them to do. 

The important point here is the right incentive, not just any incentive to get the job done.  If probation is enough to keep people from from stealing, then there is no reason to make the punishment 5 years in prison just because 5 years in prison might feel or seem better. If probation is enough to make sure someone who posses child porn does not do it again or molest any children, there is no reason to give that same person a 90 year prison sentence. That is the problem with mandatory sentencing laws. To make sure there is no disparity in sentencing among different types of defendants, the legislature overreacted and mandated that everyone gets the top sentence. If you complain to your mom that your brother got too much cake and you not enough, your mom takes the cake from both you and your brother.  Thus, the punishment might be equal, but not the right one.

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This is a question that I am asked all the time, and most of the people who ask me the question assume that I will answer the question by saying "yes, drugs should be legal." That assumption would not be correct. While I think current drug laws are too strict, I think most criminal laws are too strict and there is nothing in particular about drugs laws that make them unusually severe or unnecessary.  Most of the arguments I see that favor legalizing drug would be better dealt with by reforming criminal sentencing overall. 

The simple fact is that if use of narcotic drugs were legal, drugs would be much cheaper than they are now and more people would abuse them. That is just because of the increased availability and diminished social consequences as a result of legalization.  That is not good.  As someone who has dealt with a lot of people who have used and abused drugs, I find nothing redeeming or beneficial about drug use.  And that includes marijuana use.

And while many people who want drug legalization point to the fact alcohol is a drug and is legal, to me that argument is just the more reason illegal drugs ought to remain illegal. If a house is burning down, that is not a good reason to throw fire on the flame.  For examples of the usual arguments of legalizing all drugs, see "Legalize drugs — all of them" by Norm Stamper, the former chief of Police in Seattle: 

I favor legalization, and not just of pot but of all drugs, including heroin, cocaine, meth, psychotropics, mushrooms and LSD...I've never understood why adults shouldn't enjoy the same right to use verboten drugs as they have to suck on a Marlboro or knock back a scotch and water.

Having said all that, however, there is one good reason legalizing the sale and purchase of drugs should be legal: it will greatly reduce violent crime.  Ironically, most drugs laws punish drug dealers much more severely than drugs users, but that distinction may be outdated and unhelpful.  That is because most of the violence from drugs is a direct result of the fact that drug dealers do not have a legal mechanism to resolve grievances other than violence.  If you are a drug dealer and someone breaks a deal with you, you can't sue them.  So most drug dealers resort to violence. But there is nothing inherently violent about the commerce of drugs other than the fact that the commerce of drugs is illegal. 

Maybe a way we could reduce violence is by making the sale and purchase of drugs legal, and thus, drug dealers would not have to resort to violence and they would have a legal alternative to dispute resolution. But the actual possession and use of drugs would stay illegal.  That way, while violence would decrease greatly and drugs would probably be much cheaper, the social and legal hindrance to their use would still exist. 

The Phoenix Police Department is having a terrible time lately.  There is the ongoing Sgt. Sean Drenth investigation that is not getting any closer to resolution, with the very real possibility that fellow Phoenix police officers murdered Sgt. Drenth with the intention of covering up police corruption. 

Now there is another disaster looming, and I hope the public and media do not let Phoenix police off the hook without due scrutiny. During a training exercise last week at Sky Harbor Airport, Phoenix Police lost a bomb during training (see "Phoenix police take blame in stolen-bomb flap" by William Hermann of Arizona Republic).  

The Phoenix Police Department has taken full responsibility for recently losing a bag containing explosives during a security test at Phoenix Sky Harbor International Airport, and acting Chief Joe Yahner vowed to conduct a full internal investigation of the incident.

Officers were conducting a training exercise with bomb-sniffing dogs on Friday about 2:30 p.m., when a training aid with explosives inside went missing. It turned up Monday on a south Phoenix roadside.

While no one was hurt, this example goes a long way in showing the disaster that is the Phoenix Police Department, and I, for one, have very little confidence that the administration at Phoenix Police will take the necessary steps to investigate this matter and make sure it never happens again.  

So what should be done? For one thing, I think the possibility of felony charges, like endangerment, should be on the table. Phoenix Police should not get immunity just because this was a police training exercise, and the they should not be treated any differently from private individuals.  Firing a negligent officer, if it even comes to that, is just not enough punishment for this sort of mistake.  Losing a bomb at the airport is every bit as dangerous as a drunk driver driving on the wrong side of the road, which the county attorney routinely charges as felony endangerment.

Second, as I have written many times before with regard to Sgt. Drenth, the Phoenix Police Department is broken, and the best way to fix it is a civilian police commission.  

Even though the US Attorneys' Office committed an error in the first trial for perjury, Roger Clemens will be facing another trial for perjury for allegedly lying to Congress (Clemens faces second perjury trial in April). 

US District Judge Reggie Walton set a new trial date of April 17, in the opening weeks of the 2012 baseball season, on charges Clemens lied under oath to Congress in 2008 when denying he took performance-enhancing drugs.

Clemens, a seven-time Cy Young Award winner as his league's top pitcher, was charged with perjury, false statements and obstruction of Congress for telling a US House of Representatives committee under oath that he never used steroids or human growth hormone (HGH) in his Major League Baseball career.

Judge Walton did not believe that the prosecution deliberately tried to cause a mistrial, and thus, despite the expense to Mr. Clemens, there is no double jeopardy and he will face another trial.  If the judge believed the prosecution deliberately tried to cause a mistrial, then the judge could have barred the prosecution from trying Mr. Clemens again.  That is called prosecutorial misconduct and that is what Mr. Clemens defense attorneys' argued.

The reason a prosecutor would deliberately try to cause a mistrial is that once the jury is sworn, if the prosecution wants to dismiss the case for whatever reason (gather more evidence, locate a witness, etc...) that dismissal will mean the end of the case.  However, if there is a mistrial through inadvertence, as the prosecution claims happened here, then there is no double jeopardy and the prosecution is free to bring the defendant back to trial. 

One of the interesting things about this case is that the judge made the point that even if the prosecution did not intend to cause a mistrial, Mr. Clemens has spent a lot of money on his defense attorneys, who it seems are very expense.  "A tremendous court time has been consumed... it cost Mr. Clemens a lot of money."

With all due respect to the Judge Walton, the cost to Mr. Clemens is irrelevant. Why should a judge care how much money the defendant has spent? Should a judge bar a second trial if the defendant has spent a certain amount of money on his lawyers? If so, what about a poor defendant with only a public defender or court appointed attorney? That defendant doesn't get that argument? 

Beyond the ability and skill of an attorney, no one should get any additional benefit from having the money to hire an expensive attorney. Mr. Clemens had the right to hire his own counsel, which he did for his own benefit, and at his own peril. 

I make the point of Judge Walton's statement not to criticize Judge Walton, but to illustrate what I think is a problem with our current justice system.  Those with money and who are established get "better" justice than the rest of the population.  Judge Walton's statement inadvertently brings that point to the surface. And thus, as I wrote with regard to the Strauss-Kahn dismissal, it may be time we considered making all criminal defense lawyers public servants, regardless of the financial resources of the defendant. 

There are some criminal sentences in Arizona that make no sense.  Sometimes sentences are too long and sometimes they are too short.  Usually, politicians would rather err on the side of making sentences too long because the victims of sentences that are too long do not vote.  Even worse, the media rarely takes an interest in reporting the fact too many Americans are in prison or that in many instances, Arizona's sentencing laws make no sense. 

A perfect example of the fact some of Arizona's sentencing laws are absurdly long is the case of Robert Thomas Flobotte ("Flibotte given 90 years for child porn" by Alexis Bechman of the Payson Roundup). 

A jury on July 28 unanimously found Flibotte guilty on 10 counts of possessing child pornography.  During trial, the state presented Flibotte as an avid collector of child porn, who hoarded thousands of explicit sexual images and hundreds of videos involving children, some as young as 3.

While these allegations are serious and certainly warrant criminal charges, there was no allegation that Mr. Flibotte actually touched a child.  The sentencing Judge Cahill said "he would have sentenced Flibotte to probation if the law had allowed it, but Arizona has some of the strictest child pornography laws in the U.S." Thus, Judge Cahill had no choice but to sentence Mr. Flibotte to 90 years, a sentence Judge Cahill called "clearly excessive."  

Judge Cahill is not alone in his opinion. In an editorial opinion in the Payson Roundup (Unjust system compounds terrible tragedy): "[t]he 90-year sentence imposed on Robert Thomas Flibotte for collecting child porn on his computer offers nothing but tragedy and heartache for this agonized community." 

These sorts of sentencing disasters are the result of the Arizona legislature taking sentencing discretion away from judges and imposing mandatory minimums and mandatory consecutive sentences. While even the best judges make mistakes and over the years I have had many instances where I have disagreed with a ruling, the vast majority of Arizona judges are careful, serious, and concerned. Arizona should now give our judges back the power that our democracy had given them for over a hundred years, the power to actually judge. We should trust their ability to make appropriate rulings on sentencing.

This is part one in a three part interview with Arizona Representative Cecil Ash concerning the very important topic of reforming the Arizona penal system and changing how sentencing is done in Arizona.   Those who wish to help may contact Rep. Ash at his legislative office at 602-926-3160 (cash@azlag.gov), or through his webpage at www.cecilash.com

Rep. Ash is a Republican from Arizona's 18th Legislative District. He is from Mesa, Arizona, and before becoming a member of the Arizona House of Representatives, he was an attorney practicing in real estate and criminal law. As a Maricopa County Public Defender from 1990 to 1995, Rep. Ash defended numerous major felonies, including defending first degree murder cases.

I first noticed Rep. Ash in an article in the Arizona Republic (Arizona prisoner reforms working, study says) in which he stated he introduced "evidence based reform" legislation. I thought it was particularly interesting that a Republican from Mesa would advocate legislation designed to reduce penal consequences. Rep. Ash has kindly agreed to this interview in which he will explain exactly what evidence based reform means and why the public should embrace it.

1) Rep. Ash, thank you for agreeing to this interview. What motivated you to propose sentencing reform legislation and introduce legislation in the Arizona House? I can't imagine that this topic is politically popular, or is it popular among your constituents?

Rep. Ash: You're correct. It's not necessarily popular with constituents. I ran for office to balance the budget. But as I was sitting on the judiciary committee hearing bills, I began to remember my experiences as a public defender. I remember having clients who posed no threat to the public who were harshly sentenced to long prison terms, and I thought, at this time of budgetary constraint, maybe we should re-examine who we're incarcerating, and for how long. It has been several years since the implementation of our current criminal code, and it's time to assess how successful it's been.

2) Do you believe that too many Arizonans, and Americans in general, are in prison?

Rep. Ash: The United States incarcerates more of its citizens than any other country -- by far. It has 5% of the world's population, and 23% of the world's prisoners. One in every 33 citizens is under the jurisdiction of the criminal justice system (either in prison, jail, on probation or parole). One in every 100 persons is actually incarcerated. Washington State has roughly 6.5 million people, about the same as Arizona. Yet Washington has only 18,000 inmates, whereas Arizona has 40,000+ inmates. Massachusetts has 6.3 million residents, and has only a little over 11,000 inmates. Clearly, we have a disproportionate number of inmates vis-á-vis our population.

3) What exactly does evidence based reform mean? Does it simply mean shorter prison sentences and probation terms across the board for all crimes?

Rep. Ash: No. It means having data-driven policies. It means looking at what social science has accomplished in terms of changing behavior. For example, formerly, a person under probation supervision might miss an appointment, and the probation officer would say, "Don't do that again." The next time, they would say, "Now, you're really going to get in trouble." After somewhere between eight and 15 violations, they would run out of patience and "violate" the probationers, sending them to prison.

What social science has taught us is that if the first time a probationer fails to show up you send him to jail for the weekend, he's not likely to fail to show up again. In other words, using intermediate sanctions is more successful than allowing multiple screw-ups and then imposing a very harsh consequence. In addition, we've learned that there are a number of social constructs that can predict aberrant behavior.

By applying risk assessments early on in the process, we can better predict what sanctions work best with various individuals. The evidence comes from studies that have been made, or from the experiences of other jurisdictions that have run successful programs.

But a more important corollary question is "On what evidence is the existing system based?" Who decided and how were the current sentences established? Who decided, for example, that someone who possesses child pornography should receive a felony and serve 10 years in prison for each picture, rather than a misdemeanor and a large fine and probation as in some other states? When people question the evidence that we are using, I want them to present the evidence for justifying the status quo.

4) For the average Arizonan, is evidence based reform something that will make them safer even if it means possibly shorter sentences for some crimes? What I mean by that is even if sentencing reform has a net economic benefit for the state as a whole, is there a danger that Arizonans will be less safe than they are now?

Rep. Ash: First of all, no one who constitutes a serious danger to the public is likely to be eligible for the suggested reforms. However, an evidence-based program will result in further decreases in crime. Lengthy incarceration can be a training ground for new and more sophisticated criminals. The longer someone is incarcerated, the more difficulty he will have re-adjusting to society. One formerly successful businessman who was incarcerated for drug use told me that he had learned five new ways to steal an identify while serving his time. Another inmate said he went in with an associate’s degree in crime, and came out with a doctorate.

Right now inmates have little incentive to either better themselves or to improve their conduct. Formerly, we offered incentives for good behavior, or for successful educational or behavioral modification programs that gave inmates the hope that if they worked hard and changed their behavior, they might get out earlier. Those incentives no longer exist. An incentivized release program would not only make our prisons safer, but would decrease the number of inmates, and allow additional resources to be used for further educational and rehabilitation opportunities. It's been said that "education is the cheapest form of crime prevention" --both for the inmate, and for those of us involved in policy decisions.

(see part two of interview)  

New York County prosecutors, the same district attorneys' office depicted in the TV show Law and Order, have dropped the criminal sex charges against former head of the International Monetary Fund, Dominique Strauss-Kahn. The reason for the dismissal is that prosecutors simply did not believe the accuser and her story, and none of the available forensic evidence supported her story. ("NY courts let DA drop sex case, Strauss-Kahn free" by Jennifer Peltz and Tom Hays")

"Our inability to believe the complainant beyond a reasonable doubt means, in good faith, that we could not ask a jury to do that," assistant district attorney Joan Illuzzi-Orbon said in formally recommending the case be dismissed.

As I originally wrote ("NY Post AIDS Cheap Shot Against Strauss-Kahn Accuser"), Ms. Nafissatou Diallo accused Mr. Strauss-Kahn of forcing her to have sex with him after she entered his hotel room to clean. Ms. Diallo's attorney now wants a special prosecutor appointed to prosecute Mr. Strauss-Kahn because they do not believe the New York district attorney is acting properly in dismissing the case.  

This is a difficult case to understand, and I am not sure what to make of it.  On the one hand, I am certainly glad that the district attorneys' office decided not to prosecute Mr. Strauss-Kahn because they were not themselves convinced he is guilty beyond a reasonable doubt.  I do not know how many prosecutors would take their oath as "ministers of justice" that seriously and give up an opportunity of making a name for themselves.  

Having said that though, would the result have been the same if the suspect was not "one of the most powerful men in the world"?  If the suspect was just an average, everyday person and the facts were exactly the same, would the case have ended up being dismissed? Or would the pressure of facing a life in prison, and no expensive attorney by his side, have forced even an innocent person to give up and just plead guilty?

According to the news story in the video, the district attorneys' office recorded and translated Ms. Diallo's conversation- from her native African-  with her drug dealing boyfriend in custody in an Arizona jail. In that conversation, she apparently was planning on how to set up Mr. Strauss-Kahn and get a lot of money from him.  That conversation was key in convincing prosecutors she was not telling the truth.  

That bit of investigative work is extraordinary and highly unusual. Would any prosecutors office have gone through the same effort and expense of obtaining and translating the conversation if the accused was less prominent? That recording would have been essentially impossible for any defense attorney to obtain for the simple reason the defense attorney would not have known about it.  Realistically, its existence is something only the prosecutor's office could uncover.

Particularly in sexual assault and rape cases where the credibility of the victim and suspect are so important, this kind of investigative work makes a big difference.  But shouldn't all Americans get the same level of due diligence from prosecutors, and not just the wealthy and famous ones? 

Those questions are why I think all criminal defense lawyers should be civil servants, either public defenders or on government contract.  That would make sure that all people, regardless of ability to pay, get the same result from the same set of facts. 

According to the National Academy of Child and Adolescent Psychiatry, about 80,000 cases of child sexual abuse are reported each year in the United States, and it is presumed that many more occur but are unreported. In court forensic psychology findings are important to determine if abuse has occurred. Knowing about why children are vulnerable to sexual abuse, the types of people who become abusers, and the outlook for victims of abuse can help in healing.

The public consensus is that most sexual crimes happen by strangers. This is actually a misconception perpetrated by the media; most offenders are either family or have some relationship with the immediate family. Also the belief that child sex offenders are likely to re-offend is also a misconception; there is a very low percentage of re-offenders and it is 25 percent lower than all other criminals.

Sexual abuse can be committed by kids and adults and because of variation in what constitutes as sexual abuse there can be a good number of false positives. While there is a high percentage of abusers who were abused as children themselves, that on its own does not predict the future. Men are almost always the offenders when it comes to child sexual abuse.

The type of person who sexually abuses children typically has a need to control another person in both body and mind. Most abusers know what they are doing is wrong but come up with denial mechanisms. Some adults find it easy to exploit a child's fears of getting into trouble or of being unloved by the people he or she cares about. As a result, abusers are able to continue victimizing a child as long as the child does not tell anyone about the abuse.

Some abusers tell the child that they will be punished for telling, or they may threaten to harm their victim's family if the child says anything to another adult. Older children may believe that their abuser is teaching them about sex or that they are in a romantic relationship with their abuser. The fact that abusers usually tell children anything to keep them quiet shows that they know the abuse is wrong.

People who were sexually abused as children sometimes become depressed and have difficulty having healthy, trusting relationships with family members and friends. Some turn to drugs for relief or become sexually active at an early age. Victims of abuse are often seen as damaged but with support from friends and family and with counseling or therapy, they can have a happy and healthy life.

Child sexual abuse is rarely an easy thing for victims and their families to work through. Abusers necessarily confuse and manipulate their victims. If abuse continues for an extended period of time, the victim can develop psychological and behavioral problems. Knowing how and why these problems developed can help families of abuse victims support their loved ones.

The United States Treasury and Obama Administration certainly do not like the fact that the bond rating agency S&P downgraded American bonds from AAA to AA, but did the S&P commit a crime?  What I am specifically referring to is a conspiracy to defraud the United States (18 USC 371): 

The general conspiracy statute, 18 U.S.C. § 371, creates an offense "[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.

Under the United States Supreme Court cases Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924), "defraud" means: 

1) The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

2) To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

I have read that the S&P made a mistake when it downgraded American debt ("More Bad Beer From S&Ps David Beers" by Marshall Auerback). But the reason I think what the S&P did could very well be criminal is because they deliberately downgraded American bonds to gain credibility with investors.  They needed to regain credibility because: 

the S&P (along with Moody’s and Fitch) covered themselves with glory during the housing bubble, rating toxic subprime junk as AAA rated paper. Not only were the agencies politically corrupted by virtue of their incestuous ties to Wall Street, but criminally incompetent as well.

Thus, to reassert themselves as a credible debt rating agency, the S&P has obstructed government function (the selling of Treasury bonds) by trickery, namely publicly misstating the solvency of the United States.  My hope is that the Obama Justice Administration will realize that Wall Street fraud and white collar crime come in different shades, and this one by the S&P might be the most dangerous of them all.   For more details of the failure of the Justice Department to prosecute Wall Street fraud, see William K. Black of New Economic Perspectives.

By way of example, the Maricopa County Attorneys' Office has prosecuted and convicted many defendants for the class 4 felony fraud (ARS 13-2002 forgery) when the defendants have shown a police officer a fake driver's license.  The theory of the prosecution is that showing a fake driver's license to a police officer is fraud against the state because the defendant is impairing government function by way of trickery. 

A. A person commits forgery if, with intent to defraud, the person: 1. Falsely makes, completes or alters a written instrument; or 2. Knowingly possesses a forged instrument; or 3. Offers or presents, whether accepted or not, a forged instrument or one that contains false information. B. The possession of five or more forged instruments may give rise to an inference that the instruments are possessed with an intent to defraud.  C. Forgery is a class 4 felony, except that if the forged instrument is used in connection with the purchase, lease or renting of a dwelling that is used as a drop house, it is a class 3 felony. For the purposes of this subsection, "drop house" means property that is used to facilitate smuggling pursuant to section 13-2319.

P.S. (August 18, 2011) The Justice Department is investigating whether Standard and Poor's improperly rated dozens of mortgage securities in the years leading up to the financial crisis.  See "U.S. Inquiry Is Said to Focus on S.&P. Ratings" in the New York Times by Louise Story.

Before the Diamondbacks came in existence, I, like seemingly all of my friends, was a New York Yankees fan. And I remember quite well when Hideki Irabu came to the Yankees.  He dominated the Japanese Major League, the same league that gave MLB Ichiro Suzuki.  Irabu was supposed to have the fastball of Nolan Ryan and the split finger fastball of Mike Scott.  In short, he was the Japanese version of Roger Clemens.  

His career came and went, without the Cy Young Awards, and I soon forgot about him and the my loyalty to the Yankees switched to Arizona.  I had not heard his name in a few years, until sadly yesterday, I read online that he died from a suicide.  I also read that he had a DUI, not an Arizona DUI but in California.  

Now I can't help but think that DUI case, even though it was a misdemeanor and even though it seems in California jail time is not automatic, may have contributed to his emotional problems.  And that mere possibility is why I think it would be a great shame to eliminate the right to a jury trial for even a first-time non-extreme DUI. A DUI charge, particularly an Arizona DUI charge, is not like any other allegation.   A DUI conviction is a stigma that weighs heavily.  It implies that someone is a social outcast, a drunk, and is so selfish and dysfunctional that he is willing to risk the lives of friends and neighbors for no good reason.   

The Arizona Supreme Court used to recognize these points and there was constitutional protection.  The constitutional basis for a right to a jury trial in all DUI cases used to be an Arizona Supreme Court decision called Rothweiler v. Superior Court, 100 Ariz. 37 (1966).  In that case, the Supreme Court decided on a three part test to determine which crimes warranted a jury trial. 

1) Is the defendant exposed to a severe penalty in which the exposure exceeds six months imprisonment or $1000 in fines?

2) Does the act involve moral turpitude? 

3) Has the crime traditionally merited a jury trial? 

But that may have changed with the 2005 Arizona Supreme Court decision called Derendal v. Griffith, 209 Ariz. 416 (2005). I used the "may" because the 5000 word decision does not specifically address the right to a jury trial for misdemeanor DUIs.  Despite the still seemingly unresolved issue of  the constitutional right to a jury trial in all DUI cases, there was a statutory right in ARS 28-1381(F), which read: 

F. At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted. 

But what the legislature gives, it can take away.  And that is exactly what has happened with the new law. What a shame.   Please see my interview with Nicole Crites of CBS KPHO channel 5 regarding this topic. 

One of my fondest memories a child was watching baseball on Saturday afternoons, and then every October, listening to Vin Scully do play by play for the playoffs and World Series.  And the moment that sticks in my mind the most is the same one that gave Boston Red Sox fans such heartache up until recently: Mookie Wilson's ground ball through Bill Buckner's legs.  As Vin Scully said of the image of Buckner doubled over in shame, "if a picture tells a thousand words, then this picture tells a million."  

If the image of Buckner tells a million words, then the above picture of Lenny "Nails" Dykstra in an orange jump suit in custody is no less informative.  As reported by Harvey Araton in today's New York Times: 

Dykstra, 48, faces federal charges of bankruptcy fraud and obstruction of justice, along with state charges of identify theft, grand theft auto and possession of drugs.

Unfortunately for Mr. Dykstra, his life after baseball has turned out poorly: 

Not long ago, Dykstra was the proud owner of an $18.5 million mansion in Thousand Oaks, Calif., which he purchased in 2007 from Wayne Gretzky. But since early June, home has been the Los Angeles County jail in a part of the city with no ocean views and where bail bondsmen storefronts greatly outnumber palm trees.

One thing that may have gotten Mr. Dykstra in trouble is bankruptcy fraud.  Many people who file bankruptcy do not realize that if you intentionally lie on the bankruptcy petition, including things like hiding assets, the worst thing that could happen is not just a fine or dismissal of your bankruptcy case.  You could go to prison. And it could even be something like what Mr. Dykstra allegedly did: sell property of the bankruptcy estate without court permission.  As reported by Fox News "Dykstra indicted for bankruptcy fraud"

Dykstra, who filed for bankruptcy in July 2009, allegedly removed, destroyed and sold property that was part of the bankruptcy estate without the permission of the trustee, ... The 48-year-old is accused of one count of bankruptcy fraud, one count of obstruction of justice, four counts of concealing property from the bankruptcy estate, three counts of embezzlement from the bankruptcy estate, and four counts of making false declarations to the Bankruptcy Court.

While Mr. Dykstra's story is very sad, I hope people who are considering filing bankruptcy will learn from it. While America does not have debtor's prisons, you can go to prison if you lie to the bankruptcy court.   

I wish every time the media does a story like Casey Anthony or OJ Simpson, about someone who they think is obviously guilty getting away with murder, they would do another story about America's place as the nation with the world's highest incarceration rate, even higher than allegedly rogue totalitarian nations like China, Iran, or North Korea.

Why are so many Americans in prison?  The statistics are overwhelming.  The United States has the highest documented incarceration rate in the world. At year-end 2009 it was 743 incarcerated per 100,000 population. According to the U.S. Bureau of Justice Statistics (BJS) 7,225,800 people at year end 2009 were on probation, in jail or prison, or on parole — about 3.1% of adults in the U.S. resident population. 9.2% of African-Americans are prison, and 70% of the American prison population is non-white.

While the United States only has 5% of the entire world's population, we have 25% of the world's prison population.   Our incarceration rate is so high, that second place Russia has an incarceration rate 40% lower. In modern history, only Stalin's pre-World War Two Soviet Union- the one that had the ideologically driven purges and dreaded NKVD- had a higher incarceration rate than our nation does now.  The median for all other nations is an incarceration rate 1/6th of the United States. 

Some might say these rates are necessary to keep Americans safe from violent crime, but is that the case? For a great discussion of this point and the absurdly high incarceration rate, see "U.S. prison population dwarfs that of other nations" by Adam Liptak of the New York Times. 

I can't but help the fact part of the reason we have such a high incarceration rate is the importance the criminal justice system has in creating jobs.  For a detailed exposition of this point and comparison between Military Keynesianism and Penal Keynesianism see "Can Penal Keynesianism Replace Military Keynesianism?" by L. Randall Wray. 

The Casey Anthony murder trial in Florida is the biggest criminal justice story since the OJ Simpson murder trial. And just like OJ, it has inflamed passions on all sides.  I did not watch the entire trial start to finish, but I do have some observations.  

First, it is crystal clear the prosecution put too much time and energy in trying to prove Ms. Anthony was a bad person- "party girl" character assassination- and not enough energy into proving how and why Caley died. How Ms. Anthony behaved after Caley died only proves how she behaved; it does absolutely nothing to prove she murdered Caley.  Slaughterhouse Five is a Vonnegut classic devoted to the single point that normal people react abnormally to unusual events.  That is exactly what happened here.  Anyone who thinks he or she knows Ms. Anthony murdered Caley based on Ms. Anthony's partying or tattoo choice has been fooled by randomness. As Nassim Taleb would say, that person- and the prosecution- has confused noise for information. 

Second, the "CSI effect" was in full force.  It seems that the state of Florida simply could not prove how and when Caley died, but unfortunately for the prosecution, a jury pool used to the fantastic Hollywood world of CSI did not know that.   As such, the prosecution should have devoted more energy to educating the jury as the modern limits of forensic science, and less energy to a seemingly random, left field statement like if you hit a animal while driving, any reasonable person would check the trunk; and the prosecution should have completely scrapped its chloroform fixation.  

The prosecution should also take heed of Mr. Baez' calm and even mannered demeanor.  Juries dislike dramatic prosecutors who seem vindictive and blood thirsty. And sometimes they vote against the prosecution not because they believe the defendant is innocent, but because the prosecutor scares them.   While I don't think that happened here, I do think the prosecution would be well advised to tone down the drama and ditch the Nancy Grace theatrics.  

Finally, this jury did not make a mistake.  Juries don't make mistakes; bad lawyering and bad facts make mistakes.  This jury knew full well the consequences of their decision and the possibility of public scorn. We should thus assume this was their well reasoned and considered opinion.  

To see my interview with Nicole Crites of KPHO see the video above. 

One of the biggest punitive distinctions in criminal law in Arizona is the difference between personal possession of drugs and possession for sale.  And like many other areas of the law, while the consequences between the two charges are very, very different, the facts distinguishing between the two are not. 

Why is the difference between personal possession of drugs and possession for sale so important?  The main reason is that if the state convicts you of possession for sale, the state thinks you are a drug dealer. On the other hand, if the state convicts you of personal possession the state thinks you are probably just a user. Under proposition 200 and 302, the Arizona referendum laws, in most circumstances, if you are convicted of a first or second drug possession for personal use, you will not go to prison or even jail.   However, proposition 200 and 302 do not apply to possession for sale.  Thus, even if it is your first offense, if the state convicts you of possession for sale, you can go to prison. 

So while the punitive consequences are clear, the facts that distinguish between possession for sale and personal possession are not.  That is even more so in cases where a drug user buys drugs by the "Costco method": in bulk to save money.   That is because if the police catch someone with a large amount of drugs, they will assume that large amount is too much for personal use.  Other facts that the police rely on include whether or not the person had a scale, ledger, and things like plastic bags with drugs individually wrapped for quick distribution. The main method of proving possession for sale is by the use of expert witnesses.  In Arizona, that usually means the case detective testifying in his or her expert opinion the drugs were for sale, not personal possession.  It is up to the defense at that point to discredit the case detective or have their own expert rebut the case detective. 

Law Professor Michael O'Hear of Life Sentences Blog "Tracks New Cases and Research on America's Supersized Sentences" has a wonderful post at his blog about the different causes of high American incarceration rate. One of the things he mentions is the strictly non-punitive factors involved in determining how many Americans are in prison.  

What I mean by non-punitive factors is that when people speak of the rationale or purpose of criminal law, it is to keep society safe by way of general deterrence, specific deterrence, and incapacitation. General deterrence is the message to people at large that you cannot do certain things.  Specific deterrence is the message to a particular person, the defendant, that you cannot do certain things.  And incapacitation is keeping dangerous people out of society and in custody. 

Non-punitive factors would include things like political motivation, like getting more voters, and economic factors, like Prison Keynesianism, creating a demand for jobs by incarcerating more Americans.  In his blog, Professor O'Hear mentions Heather Ann Thompson’s new article, “Why Mass Incarceration Matters: Rethinking Crisis, Decline, and Transformation in Postwar American History,” 97 J. Am. Hist. 703 (2010).

Among other things, while typically conservative Republicans are seen as the force behind political pressure increasing American incarceration rates, that might not be entirely correct: 

Although it is well-recognized that Republicans have emphasized law-and-order themes since at least 1968 and that the era of mass incarceration has also been an era of conservative domination in national politics, Thompson challenges the conventional view that mass incarceration was a result of the right’s political success.

Liberal Democrats, even the one behind the War on Poverty and the Great Society, Lyndon Johnson, could be as much to blame, or credit, depending on your viewpoint, for American incarceration rates: 

She argues that liberal Democrats, no less than conservative Republicans, embraced law-and-order themes in the 1960’s. President Johnson, for instance, made crime a major political issue well before the pivotal ‘68 election. Thompson thus suggests that mass incarceration might have proceeded even if Democrats had retained their preeminent position after 1968.

Interestingly, in his blog post, Professor O'Hear does not mention Prison Keynesianism, but instead he mentions his belief that increasing state penal budgets have decreased the budgets for social services: 

And maybe there is another important political effect that Thompson does not discuss, albeit more at the state than the national level: burgeoning corrections budgets have created fiscal crises in many states. These crises, in turn, provide justification for dismantling the social service infrastructure and privatizing everything in sight, thereby crippling reliably Democratic constituencies (government employees, social service providers, social service clientele).

On this last point I tend to disagree not out of political reasons, but out of ignorance of economic factors.  I am certainly no admirer of rabid privatization or neoliberalism, but without evidence, I remain skeptical of this point.  I am, however, a complete believer in that Democrats, including the horrid New Democrats like Bill Clinton, deserve at least part of the blame for the fact too many Americans are in prison. 

I am about to describe something that happens all the time Arizona DUI cases. Imagine the following: a police officer sees a driver late at night make a right turn, and instead of turning into the curb lane, the driver turns in the median lane.  The officer pulls over the driver for not making a turn "into the first available lane."  When he comes up to the driver, he can smell alcohol on him; he asks the driver to do some field sobriety tests and a portable breath test. The driver tells the officer "I had a few at the bar down the street". The officer then arrests the driver and the blood alcohol result is well above the legal limit. During the search incident to arrest, the officer finds a gram of methamphetamine on the driver, and he orders a drug screen as well of the driver's blood.  

Now consider the fact possession of methamphetamine is a class 4 felony, while a first time DUI is almost always, with a couple of exceptions, a misdemeanor.   With that in mind, which of the two crimes, drug possession of crystal meth or a first time misdemeanor DUI, do you think brings more jail time?  The answer is the DUI.  For a first time DUI, the time in custody is at least 24 hours and can be up to 180 days in jail. The state required minimum for a first time conviction for methamphetamine is no time in custody, and under most circumstances, it is illegal to be sentenced to prison for a first or second conviction.  

Considering the fact one always has the right to a jury trial for felonies and the penalty for a DUI is greater than some felonies, one would assume that you would get a jury trial for a misdemeanor DUI as well.  That has always been the law, but that might just change.   According to Paul Davenport of the AP, Senate Bill SB 1200 would: 

A bill approved by the Arizona Legislature would end misdemeanor DUI defendants' automatic right to a jury trial for a first offense... The House formally approved the bill Monday, and the Senate followed suit Tuesday afternoon. The Legislature adjourned its session early Wednesday morning, and the bill is now among 168 measures awaiting action by Gov. Jan Brewer by May 2.

According to Lester Pearce, a Maricopa County justice of the peace for north Mesa:

Eliminating a blanket right to jury trials for first-offense misdemeanor DUI cases will save millions of dollars statewide in court costs and other expenses, primarily because trials will be shorter and because direct jury expenses will be eliminated in many cases. 

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Detroit Tigers superstar Miguel Cabrera was recently arrested for a DUI in Florida.  According to a story in the UPI: 

Evidence released Tuesday by the State Attorney's Office on Cabrera's Feb. 16 arrest showed two Wal-Mart truck drivers told authorities a black Ranger Rover, which law enforcement later determined was Cabrera's, forced one of their trucks off the road and forced an oncoming car to take "evasive action and (go) totally onto the grass shoulder in order not to hit the sport utility vehicle head-on," TCPalm.com reported.

The reason I bring up this Mr. Cabrera's case is not to pick on him, but rather to demonstrate the concept of "probable cause."  In an Arizona DUI case, probable cause means for an officer to arrest someone for a crime, they must have reasonable evidence to believe that a crime has been committed and that the suspect is the one who probably committed the crime.  If the arrest is without probable cause, then the arrest is illegal and any evidence seized as a result of the evidence cannot be used at trial.  

In most cases, probable cause for an arrest is not an issue or very important, but in Phoenix DUI and Arizona DUI cases, it is very, very important.  That is because the most compelling evidence the prosecution uses in DUI cases is a chemical test, either blood or breath, proving blood alcohol concentration.  Importantly, the portable breath test, or PBT, which officers use pre-arrest, is not admissible in trials. 

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As I previously mentioned in a blog comment, Ms. Brock received 13 years in her case from Judge Robert Olson.   In a deal with prosecutors, she plead guilty to attempted sexual conduct with an underage boy last month. She was facing anywhere from seven to 15 years for the crimes.  AZ Family Reporters Natalie Rivers and Stacey Delikat have a very good summary and video of the sentencing.  

And as so typical for prominent criminal stories, opinions of the sentence vary considerably.  KPHO Channel 5 had a very interesting article in which they compared Ms. Brock's sentence to other sex offenders, and they made the point "Susan Brock's sentence on Thursday of 13 years for having sex with a 14-year-old boy is tougher than many similar cases".   One important point about KPHO's story is that KPHO did not claim or argue Ms. Brock's sentence was excessive because women offenders should get shorter sentences than men. But in a very provocatively titled article "KPHO Pities Susan Brock and Her "Tough" Sentence With List of "Similar" Cases That Are Only "Similar" Because She's a Woman", Phoenix New Times James King writes:

The local TV station -- infamous for telling it like it isn't -- made a list of the sentences handed down to other women who've been convicted of sleeping with kids. They say the cases are "similar," which they're not -- they're just all women. In other words, if Brock were a man, we have a feeling KPHO wouldn't be pitying her over how "tough" her 13-year sentence is for repeatedly having sex with a child. 

Mr. King's criticism of KPHO is nothing more a cheap shot.  First, KPHO never explicitly claimed Mr. Brock's sentence was excessive just because she was a women.  And even if that was implied, it is a legitimate distinction.  I don't believe that the emotional trauma that a teenage boy suffers from sex with an adult female is anywhere near as bad as he would if the adult was male or if the victim was a female and the offender a male. That does not mean an adult female should not get a prison sentence.  It just means a female offender and a male offender should not be automatically treated the same because the victim's damages will not automatically be the same.   My reason for thinking teenage boys will not suffer emotionally as much as females is not based on any study. It is based on the fact I used to be a teenage boy and I am almost certain that this would not have bothered or scarred me too much. 

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Gary F. Dunham Jr.is the principal of Alliance Bail Bonds LLC in Mesa, Arizona.  He has kindly agreed to answer the following questions, which I get asked all the time, about bonding out of custody from an Arizona jail.

If a family member is out the state and cannot come to Arizona, can you help them bond a friend or family member out of an Arizona Jail?  

If someone is out of state and cannot come to Arizona, they are able to post a bond via telephone and fax/email using either a credit/debit card, wire transfer or a piece of property. If someone calls us collect from the jail, we are able to gather the information they provide to us, contact their family/friends for them and arrange a bail bond. Once arranged, then we can post a bond to get the defendant released from custody.

If the judge orders “cash only” bond, what does that mean? 

Cash Only means that the jail will accept only "Cash Money" as a form of payment to secure a defendant's release from custody. Not a paper bond. "Cash or Bond" means that the jail will accept either a "Paper Bond" or "Cash Money" as a form of payment to secure a defendant's release from custody. Both can be considered appearance bonds unless the "Cash Only" designation is for unpaid fines, in which case the "Cash Money" paid to secure the defendant’s release from custody is likely to be applied to the unpaid fine amount by the court. 

How does the bail bonds process work? In other words, let’s say someone has a $30,000 secured bond, and a family members wants to get him out but they do not have $30,000 on hand, what would should they do? 

The first thing to do is to contact a reputable Bail Bond Company to arrange the bond.  In this example of a $30,000.00 bond the required in accordance with the law is to secure collateral (Something that has a value of $30,000.00 or more) that the Bond Company could hold in their possession or attach a lien to.  The Bond Company will also charge as their fee for posting the bond 10% of the bond plus expenses. ($3,000.00 + expenses) Expenses vary and are mostly related to costs of lien attachments, notarization of documents and time of day the bond is posted, although Bond Companies fees can vary. 

A lot of people assume that if a bond is secured, they can get out by only paying 10% of the bond amount and no other property or cash is require. Is that correct? 

That is a common misconception. If you contract with a Bail Bond Company the fee govened by law is 10% of the bond + expenses. But collateral is required on all bonds posted in the State of Arizona.

Do you handle all the court paperwork once someone hires your company as far as filing with the court? 

Yes, we produce all the court required documents necessary to secure the release from custody of a criminal defendant after we are contracted with.

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Mr. Solomon Kanu is a well-established immigration and criminal defense lawyer in Phoenix, Az.  He has graciously agreed to an interview regarding the overlap between criminal law and immigration law. 

Mr. Kanu:

1) If someone is charged with a misdemeanor, for example a DUI or assault, and they are not a US citizen, should they be concerned about ICE or possible deportation?

Oh yes. Even long term permanent residents can be put in Removal proceedings because of some criminal conviction that is as simple as DUI. Many times when a non-citizen is booked into a jail, ICE is notified and they can place an Immigration detainer (hold) on the defendant making it imperative that even if he or she bonds out of the jail, ICE picks them up. It is important to consult with an immigration lawyer with criminal defense knowledge or have your criminal defense lawyer retain an immigration lawyer for you right away.

2) What if someone is not a US citizen and they are convicted of a felony, will they automatically be deported?

No. It depends on the offense and other factors of the conviction. Even then, there are several forms of relief that may be available.

3) What should a person who is facing criminal charges, for example, they are in custody in the county jail, do if an ICE agent asks to speak with them?  Can they invoke Miranda rights and refuse to talk to an ICE agent?  Is there anything in immigration proceedings similar to a suspect's Miranda rights in a criminal matter? Does someone have the absolute right to consult with an attorney during an ICE investigation as they would in a criminal investigation?

They can refuse to speak and ask that their lawyer be present in any interview with ICE. Whatever information they give then remains a permanent record in their immigration file.

4) When should a person be concerned about his immigration status?  If ICE has put a hold on someone while they are in custody for a criminal matter, can they bond out? And what does the immigration court consider when determining release conditions?    

A person should be concerned about their immigration status before they get into any trouble at all. If they are in jail already and ICE puts a hold it means that bonding out is to be released to ICE. It is sometimes risky because they may not be able to attend the next court hearing with the criminal court if they are detained in the Immigration Detention Centers in Eloy, Florence etc.

5) How has Arizona's recent law on immigration, SB 1070, changed how you practice law?

I don’t think it has changed anything.

6) If you could tell a person who is facing criminal charges and is not a US citizen one thing, what would that be?

Do not take any chances or take any pleas until you have been advised of the possible immigration consequences of the offense/conviction.

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In yesterday's Arizona Republic, reporter Laurie Merrill writes:

Early testimony in Susan Brock's sentence hearing set the stage for what is likely to be two vastly different portrayals of the woman who admitted to having sexual conduct with a Chandler teenage boy....In a plea deal two months ago, Susan Brock admitted to attempting to perform sex acts on the Chandler boy...She faces a presumptive sentence of 10 years on one count of attempted sexual conduct with a minor

The important thing to note about this case, other than the celebrity status of the defendant and the bizarre involvement of Ms. Brock's daughter,  Rachel Katherine Brock, in the mess, is the seriousness of sentencing in sex crimes cases.   In the eyes of the law, the most dangerous thing an adult can do to a child is not hit or point a gun at them, but touch them in a sexual manner.   This is true even if the child is a male and defendant is a women, and there is absolutely no reason to think whatsoever that the child will suffer longterm physical or mental problems as a result.  

Even more drastic, when the Court sentences someone to prison time in the Arizona Department of Corrections for a sex crime, it is flat time.  That means the defendant is not eligible for early release or for 85% time.    That comes from the notorious allegation of "Dangerous Crimes Against Children", which prosecutors allege when a felony, including sex crimes like oral sex, is committed against a child under age 15.   That same allegation also means that any defendant convicted of that allegation will not be eligible for parole, even for a first time offense. 

In the Susan Brock matter, the state, through the Pinal County attorney, and the defense are going through what is called an aggravation and a mitigation hearing.  In all felony cases, both the defense and the prosecution will have the opportunity to present evidence, just like the trial of fact phase, to convince the judge of their respective position for sentencing.  However, these types of hearing are rare and usually only happen in more serious felonies.

As you may imagine, this is about a DUI in Phoenix I tried.  On that case, I was planning on giving specific details on what happened until I saw an article in the NYT about how some defense attorneys were suffering bar sanctions for doing exactly that.  I don't think a Phoenix DUI lawyer would get much sympathy. 

What bothered me was the judge. The judge was rude but at the very same time extremely sensitive.  The judge went out of his or her way to provoke confrontation, and then acted extremely offended at simple, everyday argument.   Vanity in a robe.   But that was not the problem.  I could and did deal with all that because dealing with vain judges is just part of the job; the real problem was the judge did not know simple, basic rules of evidence or procedure.   Typically, a judge’s personality is not a severe problem unless the rulings are substantive.  For example, a judge just being a grouch is not a problem, but when that grouchiness leads to a bad ruling, that is a problem.

It all started during during jury selection; the judge did not strike a career prosecutor for cause and forced me to use a peremptory strike. This was despite the fact before jury selection began the judge said that he or she did not like dragging out jury selection and would strike any juror at a hint of bias.  So much for that. I won’t list all the reasons why I thought the judge should have struck the juror for cause other than to point out anytime a potential juror is a lawyer with extensive criminal law experience, whether for the state or defense, striking that juror is almost always automatic.  All I could do was make my record as extensive as possible, which I did.

It then turned worse because it seems the judge did not understand the rule of completeness or hearsay.  When I tried to introduce my client’s statements to the police during the cross examination of the investigating officer, after the prosecutor had already partially done so during direct examination, the judge ruled the answers to my questions were hearsay.  I had done the same dozens of times before without the least bit problem, and I when I said I was entitled to “complete the story” and it was thus a hearsay exception under the rule of completeness, the judge responded (paraphrasing as best I can remember) ”the prosecutor did not ask those specific questions that you are asking; therefore, it’s hearsay.”  My argument, which is perfectly consistent with the rules of evidence, case law, and hundreds of years of practice, is that if the prosecution decides to introduce part of a defendant’s statement to the police into evidence, I am entitled to introduce the rest of the defendant’s statement.  If the prosecution does not open the door first, I don’t get to complete it.  In this case, the prosecution opened the door.  But according to this judge, the rule of completeness only applies if I ask the exact same questions the prosecutor already asked on direct, which if true, would make the rule of completeness totally unnecessary!

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