John Larsgard Gets 7 Years Prison Sentence

Posted by Vladimir Gagic on April 26, 2012

Is this the right result? 7.5 years in prison for a panic induced flight accidentally injuring one person? Or maybe is this so obviously wrong that something needs to change, like maybe sentencing reform? Is this maybe the straw that shows what America's vile Prison Democracy truly is?

I know Mr. Larsgard's defense attorney Criss Candelaria. When I graduated from law school, he was the County Attorney in Navajo County and I interviewed with him. He is a very good lawyer and I have no doubt he did everything he could to represent Mr. Larsgard. I suspect that the prosecutor overchaged Mr. Larsgard and he had no choice but to plead guilty. (see "Norwegian man gets 7.5 years for running over woman's toe" by Lindsey Reiser of KPHO Channel 5): 

"Completely a misunderstanding and blown out of proportion," said Larsgard's attorney, Criss Candelaria, to VGTV. Local defense attorney Vladimir Gagic, who is not connected to the case, agrees. 

"I feel bad for the guy, it's something that's completely out of proportion with decency and common sense," Gagic said. He added that while the sentence seemed a little harsh to him, it's not very surprising and is consistent with federal and state laws. That's because from the law's point of view, Larsgard used the car as a deadly weapon.

Also see "Winslow wrong turn leads to prison for Norwegian man-Norway captivated by countryman's collision with U.S. justice system" by Scott Craven, "A frenzied, 8-minute ordeal ended up with Larsgard facing 36 criminal counts, including attempted second-degree murder." 

If you agree that this sentence makes no sense, then the only realistic option left is clemency by Gov. Jan Brewer. I sent her the following tweet, which you can retweet by clicking on the link below: 

Show the world that Arizona is fair and honest. Plz commute John #Larsgard sentence to time served and let him go home @GovBrewer

One point needs to be made though. While a lot of people from Norway are claiming, with quite a bit of justification I may add, that this sentence is far too harsh, I would not jump to the automatic conclusion that Norway's criminal justice system is better. As I wrote before in "Female Sex Offenders and Punishment: Europe Does it Better?", while it is the case American sentences are too harsh, European sentences are too lenient: 

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."

Mark Goudeau, Baseline Killer, Talks to the Jury

Posted by Vladimir Gagic on November 18, 2011

Mark Goudeau, the man convicted of the Phoenix Baseline Shootings, talked to the jury directly during the penalty phase. The jury decides whether Mr. Goudeau should receive the death penalty. Was his testimony helpful? Should he have said something different? Did he manage to save his life? Watch the video to hear what I think. 

Tanya McDowell, Single Mom May Get 20 year Prison Sentence For Putting Her 5 Year old in Good School

Posted by Vladimir Gagic on October 24, 2011

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.

Robert Thomas Flibotte Gets 90 years in Prison for Possessing Child Porn

Posted by Vladimir Gagic on August 31, 2011

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.

What Hideki Irabu's Tragic Death Says about Arizona's DUI Jury Trial Law

Posted by Vladimir Gagic on July 29, 2011

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. 

Bankruptcy Fraud and Lenny Dykstra

Posted by Vladimir Gagic on July 19, 2011

Lenny Dykstra

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.   

PTSD and Arizona's Veterans

Posted by Vladimir Gagic on July 18, 2011

When I was in elementary school, I remember vividly the scene in First Blood when Rambo breaks down and confesses how much difficulty he has dealing with post-traumatic stress syndrome (PTSD), and can't hold a simple job or live a normal life.  I also remember thinking how our nation could let something like that happen to its veterans.  

But things have not gotten much better and one consequence of America's wars in both Iraq and Afghanistan is when veterans come home, many are having great difficulty adjusting back to civilian life.   From the US Department of Veteran's Affairs: 

Research shows that aggressive behavior is more common in those with PTSD than those without PTSD. For example, in one study, male Vietnam Veterans with PTSD committed more acts of violence against family and others than Veterans without PTSD. Also, rates of PTSD in prison inmates are higher than in the general public.

While some cynics say anyone who claims PTSD is malingering or is trying to get benefits (see PTSD and the Vet), there is very good reason to think PTSD is real and that but for PTSD or viable treatment, these veterans would not be in the criminal justice system. 

I personally have spoken to combat veterans who upon return to civilian life, have been accused of various crimes. Unfortunately for them and all of us, the law does little to help veterans suffering from PTSD if it does not rise to the level of mental illness.   And my experience is that so far, prosecutors don't really care if a veteran accused of a crime is suffering from PTSD.   One way to change that would be for Arizona to adopt Veteran PTSD legislation like Minnesota is considering: 

The legislation would require the courts to determine whether a criminal defendant is a veteran. With military service established, the defense attorney could then order a psychological assessment...  If the veteran is diagnosed with a mental illness, the court will be made aware of possible therapy programs available through the Department of Veterans Affairs, and treatment can be considered during sentencing

For more information on this story, the pending Minnesota legislation, and former Marine Tony Klecker see "Crime and PTSD: Pending legislation would help veterans get treatment instead of prison time" by Beth Walton. 

For anyone who is concerned about how Arizona treats its veterans, please contact your local senator, representative, and the governor's office so that Arizona can adopt legislation in line with the Minnesota bill. 

For an interesting article concerning diagnosing PTSD for veterans, see PTSD's Diagnostic Trap by Sally Satel of the American Enterprise Institute. 

Too Many Americans are in Prison: Prison Democracy

Posted by Vladimir Gagic on July 15, 2011

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. 

Arizona Aggravated Assault with a Deadly Weapon and Lori Klein

Posted by Vladimir Gagic on July 13, 2011

It seems that Arizona politicians can't help but make Arizona look bad, and in the process, expose the little secret fact that if you wealthy and privileged, the law does not come down on you so hard.

As reported by Howard Fischer of the East Valley Tribune, Arizona Republic reporter Richard Ruelas claims Arizona Senator Lori Klein pointed a handgun at him. She denies that it was intentional. 

A first-term state lawmaker denied Monday she deliberately pointed a loaded gun at a newspaper reporter during an interview at the state Senate.

Sen. Lori Klein, R-Anthem, admitted in a statement she took her .380 Ruger out of its carrying case during an interview last month with Arizona Republic reporter Richard Ruelas in the lounge outside the Senate chamber. But Klein, who refused to comment, instead issued a statement saying that was done for the benefit of the photographer who wanted to see the gun and the laser sight -- and that Ruelas sat down in the path of the laser.

Regardless of the fact Mrs. Klein has denied that she deliberately pointed the weapon at Mr. Ruelas, there seems to be enough to start an police investigation into the matter, in particular considering the harm a handgun can cause.  

I know when I was taught basic firearm safety in the Marine Corp, we were told- the first rule of firearm safety- never, ever point a weapon at a person unless they are the enemy in battle.  If you do not follow that basic rule, something like what James King of the Phoenix New Times can happen:

The senator might be interested to know that sometimes guns do things when they're pointed at people -- for example, they can go off. Enter Jordan McGrath, 28, charged with manslaughter after blowing his friend's brains out, apparently accidentally.

As reported in the Arizona Republic, it seems rank has its benefits, and the Arizona Senate will not investigate Mrs. Klein.  "The chairman of the Arizona Senate's ethics committee [Democratic Sen. Steve Gallardo] says he doesn't plan any action regarding a fellow lawmaker who has acknowledged pointing her gun at a newspaper reporter during an interview."  

If police decided to take up the matter, the Maricopa County Attorney could charge her with Aggravated Assault with a Deadly Weapon, and allege the crime as dangerous.  That would mean if convicted, she would be going to the Arizona Department of Corrections even if it is a first offense. 

Interestly, there is now a Facebook page titled "Charge Arizona Senator Lori Klein with Aggravated Assault".  

 

Arizona Drug Crimes: Possession for Sale and Personal Possession

Posted by Vladimir Gagic on June 22, 2011

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. 

'Want A Fresh Start' Bankruptcy Attorney, Daniel Gukeisen, Gets 5 Year Sentence in AZDOC

Posted by Vladimir Gagic on May 24, 2011

Neither the media or the population in general have a very fond image of attorneys.  Sure, attorneys who work for the government, like prosecutors and judges, seem to have a decent image, but attorneys who represent consumers- divorce, criminal, personal injury, bankruptcy, and criminal lawyers primarly- have a rating lower than used car salesmen.  Of major professions, only stockbrokers are thought of lower than attorneys.   That is very sad considering the amount of money and school one must invest in becoming a lawyer.  

Of course, a lot of that public derision is well deserved.  Cheesy used car salesman like sales tactics and overly aggressive trial attorneys do damage to the bar's public image, as does the idea of rich, well established deep carpet firms making millions for work that is largely non-productive and of little social value. 

Now it seems lawyers will be thought of even less, for committing simple violent crime.  Daniel Gukeisen, the founder of the Arizona and Nevada bankruptcy "want a fresh start" practice is going to prison for killing a ASU student. According to the Arizona Republic, he received a 5 year prison sentence from Judge Cari Harrison. Gukeisen was found guilty in April for stabbing Arizona State University student Garret Hohn after an argument broke out between the two in front of Gukeisen's Tempe townhouse in September 2009.

Even though the state charged Mr. Gukeisen with manslaughter for killing Mr. Hohn, the state did not allege the crime as "dangerous".   The fact the crime was not technically dangerous meant that he was eligible for probation and is still eligible for 85% time in the Arizona Department of Corrections.  If he had been convicted of a dangerous offense, he would not be eligible for probation and he would have to serve 100% of his sentence. 

While seems some of the derision that lawyers get is undeserved, from what I could tell of the facts of this case, Mr. Gukeisen is lucky to be only going to prison for 5 years.  If the facts were identical with the only difference Mr. Gukeisen was a bar tender or car mechanic instead of a wealthy attorney, I would not have been surprised if he was charged with murder instead of manslaughter and his sentence was over 20 years. 

Are Liberal Democrats to Blame For Too Many Americans in Prison?

Posted by Vladimir Gagic on May 13, 2011

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. 

Susan Brock Gets 13 Years: Arizona Sex Crimes Sentencing Part Two

Posted by Vladimir Gagic on April 20, 2011

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. 

Continue Reading

Arizona Honor Killing: Faleh Hassan Al-Maleki Sentenced

Posted by Vladimir Gagic on April 16, 2011

Arizona Republic reporter Lisa Halverstadt writes in today's paper that Maricopa County Superior Court Judge Roland Steinle sentenced the notorious Arizona honor killer, Faleh Hassan Al-Maleki to 34 years in the Arizona Department of Corrections.

The case drew international attention after authorities said Al-Maleki, an Iraqi immigrant, deliberately ran down his daughter in October 2009 because he believed she did not adhere to traditional cultural values and brought shame to her family.

Later on in the same article, Halverstadt notes that Judge Steinle made a reference to Mr. Al-Maleki’s religion

He recounted lessons from Buddhism, Islam and Christianity, which preach forgiveness and compassion. ‘For someone to say this crime was committed to restore someone's honor, they really do not understand what religion is all about,’ Steinle said.

The fact the judge made a reference to the defendant’s religion or religion in general is odd. Most judges will do their very best to stay away from any political or emotional topics when speaking from the bench, particularly on a case with media exposure.   Unfortunately for Mr. Al-Maleki’s, Mr. Al-Maleki’s history as a torture victim in Saddam Hussein’s notorious Baathist Iraq did not seem to gain him any sympathy from Judge Steinle.   The judge ran the sentences to the various crimes consecutively, as he is required to do with violent crimes and multiple victims or instances. Considering Mr. Al-Maleki’s age, 34 years in prison is a life-sentence.

Mr. Al-Maleki’s case illustrates the importance of civil authority in moderating emotional and religious tempers.   Too many times commentators argue whether or not any particular religion is peaceful or tolerant, and they try to make the point a person’s religion is the specific reason, or at least a cause, if one is violent or peaceful.  But this case makes the clear point, I believe, that it is the strength or failing of civil authority, not the person’s specific religion, that makes the difference between peace and violence.

Arizona Sex Crimes Sentencing in the Susan Brock Case

Posted by Vladimir Gagic on April 07, 2011

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.

 

 

Domestic Violence Charge Explained

Posted by Vladimir Gagic on March 31, 2011

One thing to know right off the bat is that there is no such thing as a "domestic violence" charge in Arizona.  There is a allegation of domestic violence, but the allegation is different from the charge.  The difference is that you cannot commit the crime of domestic violence, but any other criminal act, usually assault or trespassing or criminal damage, can have the domestic violence allegation added to it.  Without question, even though the domestic violence allegation is not itself a criminal charge, it is serious.

If you are the defendant and you have a close personal relationship with the alleged victim, living in the same home, children together, married or used to be married, etc... and then you committed a crime like assault or damaged their property, the prosecution will add the allegation of domestic violence.  The most important consequence of this allegation is that if you are convicted of a first time offense, even without any criminal history whatsoever and for a first time misdemeanor, the judge must sentence you to anger management classes for anywhere from 26 weeks to a full year once a week, no exception.  For a second time conviction, even for a misdemeanor, the judge must give you supervised probation.  For misdemeanors, supervised probation is almost unheard of and extremely rare.

Another important point to keep in mind is that the victim does not have the option or choice of "pressing charges."  Once the police have written their report and the State of Arizona has decided to prosecute, the discretion to prosecute or not prosecute is strictly limited to the prosecutor's office.  The victim cannot decide, once 911 has been called and the police on their way, to drop the case.  The reasoning behind this is common sense and pragmatism.   The prosecution of a defendant should not be subject to the ups and downs of personal relationships; it should be subject to the will of the democratically elected sovereign.

Arizona Probation Revocation and Probation Revocation Hearings Explained

Posted by Vladimir Gagic on March 17, 2011

So when someone gets placed on probation, that means they will never go to prison, right? If someone gets a DUI in Arizona and gets probation, that is the end of it so long as they don't drink anymore? Isn't that the whole point of getting placed on probation?   If things were only that simple. 

First, in any Arizona felony, you can still go to jail even if you are placed on probation.  That is what is called "jail as a condition of probation", and the prosecutor can ask for that during sentencing for any felony matter.  The only time the prosecutor cannot ask for jail as a condition of probation is if the plea agreement prohibits it.  For example, if the plea says explicitly there will be no jail time as a condition as probation; and the prosecutor cannot ask for jail if the conviction is for a first time drug possession for personal use.   If the conviction, whether by plea or conviction after trail, even if the plea is silent on the topic of an initial jail term, is for any other felony the prosecutor can ask for it and the judge can order.  The judge cannot order more than 12 months of jail as an initial term of probation, and the jail term will be served at the local county jail with one major exception.  The initial 4 months that a defendant receives for DUI felony probation must be served at the Arizona Department of Corrections as required by Arizona statutes. 

Now once someone is placed on probation, they will never go to prison or jail?  No, that is where probation revocation comes in.  If someone is on probation and the probation officer has reasonable cause to believe the probationer, or defendant, has violated the terms and conditions of probation, the probation officer can take the probationer into custody and set the matter for probation revocation hearing.  At that probation revocation hearing, the judge hearing the matter will determine if in fact the probationer violated probation, and if so, what the penalty will be.  Among other things, the judge always has the option of revoking probation and sending the defendant to a term in the Arizona Department of Corrections.