Arizona Criminal Law & Sex Crimes Post

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.

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."

The NFL suspended New Orleans Saint head coach Sean Payton for one year. Of course, the reason for the suspension is that his defensive coordinator was paying bounties for hits that injured opposing players (see the AP story "Saints coach Sean Payton suspended for 2012 season by NFL"): 

New Orleans Saints head coach Sean Payton was suspended without pay for the 2012 season by NFL Commissioner Roger Goodell, and former Saints defensive coordinator Gregg Williams was banned indefinitely on Wednesday because of the team's bounty program that targeted opposing players.

Handing down sweeping and serious punishment for a system that paid out thousands of dollars when hits knocked specific opponents out of games, Goodell also suspended Saints general manager Mickey Loomis for the first eight regular-season games next season, and assistant coach Joe Vitt for the first six games.

When I first heard of the story and the suspension, I thought that the punishment was appropriate, but the more I thought about it, the more I thought the punishment was excessive. In fact, I don't think anyone should have been suspended at all. First, anyone who thinks the NFL is a civilized sport is deluding themselves. They are modern day gladiators and have the short life expectancy to prove it (see "Is the NFL the Most Dangerous Job in the World?"). And the bounty system seems to me to fit right in.

Second, the fact is, while the bounty may have encouraged and rewarded players to hit their opponents hard enough to hurt them, there is not a single allegation, as far as I know, that the coaches encouraged or rewarded any illegal hits.

In other words, the players were encouraged and rewarded for making clean, legal, albeit violent and aggressive, hits. So if that's true and if we live under the rules of capitalism, why should Sean Payton, Gregg Williams, and Mickey Loomis be punished at all? If paying someone to work harder and longer at their accounting job is reasonable, why shouldn't the bounty system be legitimate as well? Isn't that the just the invisible hand of the free market at work? 

We reward security contractors (ie, mercenaries) in Iraq and Afghanistan with great pay to help fight our wars. We reward poor Americans to enlist and fight our foreign wars. We reward athletes to ravage their bodies with excessive training, drugs, and extreme diets, and we reward successful boxers very nicely for pummeling their opponents into mental illness. We reward rural Americans to spend their life working in coal mines. So if those incentives are appropriate, isn't what the New Orleans Saints did mild by comparison? 

Or could it be, as I wrote before (see "Rich Costa Concordia Passengers Buy Their Way on to a Lifeboat. Was it a crime?"), the neoliberals are wrong and that there are moral limits to the free market? Could it be that the "commodification of everything" is not such a good idea? There is a great examination of this very issue in the latest issue of The Atlantic by Michael J. Sandel called "What Isn't for Sale?". 

"When you look into an abyss, the abyss also looks into you."-Nietzsche 

"A gem cannot be polished without friction, nor a man perfected without trials."- Seneca

We live in a bizzaro nation: The Thought Police watch us, Big Brother tracks our every move, and if we believe the wrong thing, the Political Correctness Police will put us in prison. But the Wall Street criminals who have impoverished us all walk among us unscathed.

No, this is not 1984, Stalin's USSR, or even the dogmatic right wing of the Republican Party. This is the modern day neoliberal state, and identity politics has criminalized what we think ("Student guilty of hate crimes for spying on gay roommate"): 

A former Rutgers University student who used a computer webcam to spy on a sexual tryst of his roommate, who later committed suicide, was found guilty of hate crimes on Friday in a case that put a national spotlight on gay bullying.

Dharun Ravi, 20, faces 10 years in prison on the most serious charge of bias intimidation against Tyler Clementi, 18, who committed suicide by jumping off the George Washington Bridge three days after learning his gay encounter was seen by webcam.

Predictably, for advocates of identity politics, or better yet, vanity politics, this is a signal moment to triumphantly proclaim the verdict as a victory for justice ("Even Nonviolent Crime Needs to Be Fought" by Hayley Gorenberg): 

With regard to the Ravi trial, our legal system recognizes that not all crimes draw blood. It’s possible to strike deep at one’s core without a bullet or a knife blade. Whether or not the proof is mustered to a New Jersey jury’s satisfaction, justice is served by a system that has properly acknowledged that if hate is a legal factor, it should be recognized in all of its most virulent forms, including those leveled at lesbian, gay, bisexual and transgender people for who they are.

The fact that Mr.Clementi is dead is a tragedy, but only one person is responsible for that fact: Mr.Clementi. He is the one who decided to commit suicide, and only he should receive any blame for that fact. I know that gay men and women bear a difficult burden and have much higher rates of suicide. My point is not to minimize that struggle or that Mr. Ravi is a good person, but to send Mr. Ravi to prison is no different from the KGB sending a political malcontent to the Gulag. That Mr. Ravi may go to prison is vile, and it is an example of how far our nation has degenerated.

No one should ever go to prison for what he believes. No one should be punished for anything other than for what he has done. But no longer are the ups and downs of life to be tolerated and overcome. No longer do we endure hazing as a right of passage. Instead, we are all victims and if our feelings are hurt, someone must pay. I blame Oprah, Nancy Grace, and media's promotion of the cult of the victim, self-pity ideology. I blame modern culture that insulates and shelters children without the slightest attention paid to self-reliance and overcoming.

But most of all I blame the modern, neoliberal establishment that equates vanity politics with social justice. But social justice and vanity politics are not, however, as Professor David Harvey has repeatedly made clear, necessarily compatible ("A Brief History of Neoliberalism"): 

Neoliberal rhetoric, with its foundational emphasis upon individual freedoms, has the power to split off libertarianism, identity politics, multiculturalism, and eventually narcissistic consumerism from the social forces ranged in pursuit of social justice through the conquest of state power.

It has long proved extremely difficult within the US left, for example, to forge the collective discipline required for political action to achieve social justice without offending the desire of political actors for individual freedom and for full recognition and expression of particular identities.

For anyone who wonders how the so-called 1% maintain control over the rest of us, the so-called 99%, this is exactly how they do do it: divide and conquer by way of vanity politics. Instead of a nation that is united in its pursuit of social justice, every single particular group, whether it be defined by sex, religion, race, orientation, etc... looks out for itself. No longer are working class Americans, as was the case during the New Deal, the War on Poverty, the Great Society, of all races, sexes, religions, identities united to provide our nation with the highest standard of living attainable for all its people. Instead, we are all just looking out for number 1.  

But that hasn't always been the case. The great economist John Maynard Keynes, the architect of the post-War World Two middle class democracies, was essentially a Christian Democrat, even though he was gay and an atheist: "Western civilization of which the institutional foundations are... the Christian Ethic, the Scientific Spirit and the Rule of Law. It is only on these foundations that the personal life can be lived." ("Hayek versus Keynes: The Road to Reconciliation" by Robert Skidelsky)

While the Ravi/Clementi masquerade of justice was on-going, a former Goldman Sachs executive Greg Smith exposed the Wall Street hog for what it truly is (see "Why Greg Smith Is 'Dead Right' About Goldman Sachs"). But this is our nation now, Mr. Ravi goes to prison for being a jerk, but the Wall Street hog goes unpunished. I wonder how many Americans committed suicide after they lost their jobs and livelihood as a result of the Wall Street meltdown, but yet, not a single Wall Street criminal is in prison. 

And while I am no fan of New Jersey Governor Chris Christie, I hope he does the right thing and either pardons Mr. Ravi or commutes his sentence to no prison time. If you agree, you can tell Gov. Christie that by tweeting him at @GovChristie. Below is the tweet I sent him. You can send your own or retweet mine. 

Please do the right thing and pardon Dharun Ravi. America is not the USSR @GovChristie http://www.azcriminallawsexcrimes.com/social-justice-politics/dharun-ravi-convicted-for-hazing-tyler-clementi-a-masquerade-of-justice/

UPDATE: There is a interesting story in how racism is on the rise in Europe as a result of the economic problems ("European Network Against Racism (ENAR) said in its annual report that economic crisis incites racial discrimination)": 

The most common victims of racism are African nations. General public believes that migrants and ethnic minorities have caused the high unemployment and poor working conditions at the time of the economic crisis, ENAR activists explained...

In Great Britain, for instance, black people are at least six times more likely to be stopped and searched than a white person, ENAR stressed in the report.

I cite this report to make the obvious point that civil rights can only advance when the common class isn't worried about basic surival. It is no coincidence that the civil rights movement started in the 1950s, 1960s, and 1970s, in the heyday of the post-War World Two Keynensian economic miracle. The fact that it did not happen before then, as in during the Great Depression or the Gilded Age, is not because Americans were less charitable or there were fewer civil rights champions around, but because the common class was impoverished and in no mood to care about racism.  

We should remember that lesson now: let's fix the economy, get average American of every identity a decent job and life, and mabye then, if ever, focus on identity politics. 

Solidarity is under siege. Austerity has laid waste to the vestiges of labor rights.  That sad fact is no where else more true than in Arizona. As Braham Resnick writes ("Sweeping bills attack public employee unions"):

Arizona's Republican Legislature could virtually wipe out public employee unions in a sweeping new package of legislation far broader than the collective-bargaining bills that shut down Wisconsin's Capitol last spring. The bills would:

-Make it illegal for government bodies to collectively bargain with employee groups. Public safety unions (police officer unions) would be included in the ban.

-End the practice of automatic payroll deductions for union dues.

-Ban compensation of public employees for union work.

In the middle of this anti-labor firestorm, the president of the Scottsdale Fraternal Order of Police, Jim Nolan, thought it wise to provoke and embarrass one of the most powerful men on Earth, and certainly the most powerful Arizona politician in the past 50 years: Sen. John McCain.  

This, of course, happened after Sen McCain's wife tweeted that Sgt. Jason Prostrollo (the unarmed former Marine who Scottsdale Police killed): "RIP Jason Prostrollo. You are a patriot and a veteran." In response to the that tweet, Mr. Nolan wrote a polemic directed at Mrs. McCain; she then deleted that tweet.  

While I have not seen the entire letter, I can only imagine, from the paragraph I did see, that it was hardly diplomatic or refined. And while Mr. Nolan may have won the battle by having Mrs. McCain delete her tweet, how costly was the victory for the bargaining rights of Arizona's workers? 

I agree with almost none of Sen. McCain's politics, but I have no doubt that he loves his wife and his children, and I certainly have no doubt that he is a proud man. Undoubtedly, no one who has accomplished what Sen. McCain has is soft or timid. I was at Sgt. Prostrollo's funeral and Mrs. McCain's eulogy was loving, genuine, and tender. It was as if she lost her own son. Her tears were real. She is now a wounded lioness, and that wrath will almost certainly be redeemed by Sen. McCain one way or the other.  

The best advice I ever received was never yell at a waiter for the simple reason you don't know he will do to your food when you are not looking. Sen. McCain doesn't have to stump in support of Gov. Brewer's anti-labor plan. He can do all the damage he needs to behind the scenes, with a couple of phone calls here and there. He can sway on-the-fence legislatures and none of us will ever know.  

But he's a outspoken Republican so wouldn't he do that anyway? Maybe, but maybe not. The point is not that he was fervent supporter of Solidarity before Sgt. Prostrollo was shot and killed, just that he was silent and seemingly uninterested. Now that could very well change, not because he is more interested in the raw policy implications, but because his wife has been humiliated. He could still stay silent, but behind the scenes be very dangerous to Arizona public collective bargaining rights.

What Mr. Nolan thought he could gain, other than to blast "March of Valkyries" and repeat to himself endlessly "smells like victory", by embarrassing Sen. McCain and his wife, I can't even begin to imagine. If I didn't know any better, I would have thought Mr. Nolan was an agent provocateur planted by the Goldwater Institute.

It may be wise for all union members in Arizona to ask themselves whether Mr. Nolan has the right temperament and judgment for leadership. Is his "bull in a china shop" attitude really such a good idea? Does brow-beating Cindy McCain, whose only sin was to show love for a friend, make even the least bit of sense?  

If you are a Scottsdale Fraternal Order of Police member, ask yourself this question: 20 years from now when you about to retire, what will be more important to you, that Mr. Nolan selfishly stared down Cindy McCain and won, or that you will have a decent pension and health care benefits?  If your pension is more important to you than Mr. Nolan's pride, then maybe its time someone took his place and immediately, while it's not too late, apologized to Mrs. McCain. Maybe that way, the political behemoth that is Sen. McCain will stay on the sidelines. 

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. 

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."

Prosecutors are not just any ordinary attorneys representing any random party. They are representatives of the people. As the American Bar Association says "a prosecutor has the responsibility of a minister of justice and not simply that of an advocate." The duty of a prosecutor is higher than any other attorney for the simple reason they have the power of the state and the people behind them. And if a prosecutor fails at his job, then then the people have failed. That is not true of any other lawyer. 

That is why the fact the Maricopa County Attorney's arrest and release of Jerice Hunter, based on "strategic reasons", is so disturbing. A prosecutor doesn't get the right to arrest anyone for any reason other than there is sufficient evidence to support that arrest. 

See my interview "Mom of missing Glendale girl released from jail" with Tim Vetscher in the videos above and the story by Deborah Stocks: 

Criminal defense attorney Vladimir Gagic tells ABC15 statements from children are typically unreliable. Gagic says Glendale Police will need to come up with forensic evidence linking Hunter to her daughter's disappearance in order to make the charges stick.

"Why did they arrest her in the first place, the evidence seemed very flimsy," asked Gagic. "Maybe they were trying to bluff so she'd confess. If that's the case, this is some shoddy police work at this point."

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. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Troy Davis' execution, who has been on Georgia's death row since 1991 for killing an off-duty police officer, will continue as scheduled. His lawyers, including the Innocence Project, were asking for a polygraph examination to prove his innocence.  Unfortunately for Mr. Davis and his family, however, the courts have denied his request. As reported in today's New York Times by Kim Severson (Request for Lie Detector Test for Davis Is Denied): 

As last-minute appeals to spare Troy Davis from execution at 7 p.m. on Wednesday pour in from across the United States and Europe, his lawyers asked the state for one more chance to spare him: a lie detector test.

But the Georgia State Board of Pardons and Parole, which on Tuesday denied Mr. Davis’s clemency after a daylong hearing Monday, quickly responded that there would be no reconsideration of the case, and the polygraph test was abandoned.

As is typical for American death penalty cases, this case has attracted quite a bit of attention around the world, with many activists, including some death penalty supporters like former FBI director William Sessions asking for a commutation of the sentence. 

My own feeling of the death penalty is that the ultimate sentence for murder should be decided by the public, either through direct democracy or the legislature. And every indication I have seen is that the vast majority of the population favors the death penalty over life in prison for some very severe crimes. I am not fond of judges deciding policy, such as whether or not the death penalty is legal, based on abstract constitutional principles. Even though in some circumstances the public may be wrong and the judges may be right, it is much easier to fix mistakes by legislatures than mistakes by judges, and that is why I believe judges have no place making policy.  

Ultimately, notwithstanding the fact we are all dead in the long run, the democratic process will be right more often and sooner than rule by elites and judges. Just consider the fact it took half a million American dead to reverse the awful Dread Scott decision, and that President Roosevelt had to threaten court packing to defeat the anti-New Deal Supreme Court of the 1930s. Progressives seem to believe that judicial social engineering has always favored their causes, but that belief is hardly accurate. Thus, I think it right the Supreme Court has said it is up to states to decide if the death penalty should be applied.

As far as the self-righteous Europeans and internationals, even though the European Union officially opposes the death penalty and demands joining nations scrap the death penalty, I have seen polls that show most of the European public favors it. How odd that an organization allegedly dedicated to the rule of law and democracy would ignore its own people on such an important topic.  

Some well-meaning people argue the government does not have the right or moral authority to execute criminals. I find that argument completely unconvincing. If our government has the right to send blameless 18 year old boys to storm machine guns nests in France, Iwo Jima, and if need be, anywhere else in the world, then it certainly has the right to execute criminals if that makes us safer. 

There also is quite a bit of attention drawn to the fact if we execute someone, and it later turns out the defendant was innocent it will be too late. Unfortunately, that is true of all criminal sentences and it does not apply exclusively to the death penatly. The simple fact is, in America, once a jury has found a defendant guilty, regardless of how flawed the procedure may have been, that is the end of it. I know the Innocence Project has done a lot of good work, but that is the textbook example of the "exception that proves the rule." And thus, if an innocent man were to get life in prison instead of the death penalty, the only difference is he would die in his cell at age 70 than in a gurney at age 50. From my point of view, the latter may be better than the former. 

In any event, while the American public seems to in favor of the death penalty, is that right? Even if we could know for certain that death row inmates were guilty, which we can't, is the death penalty the right policy? The main, if not only, reason for supporting the death penalty is that it is supposed to deter murders and save lives (see "The Death Penalty Deters Crime and Saves Lives" by David Muhlhausen). I once heard a statistic, probably from a pro-death penalty organization, that every execution saves something like 8 lives. That statistic was taken as conclusive proof of the value of the death penalty. 

I disagree with that conclusion because even if true, that statistic only proves the death penalty saves 8 lives more than no punishment at all, not 8 lives more than a life sentence as an alternative. As I wrote before, just punishment is not just about any punishment to get the job done; it is about the right punishment ("lightest touch"). And thus, for the death penalty to be good policy, there would have to be conclusive proof that the death penalty saved more lives than the alternative of life sentences. So far, that proof does not exist. 

How did Phoenix Police Officer Sgt. Sean Drenth die? Did he commit suicide while on duty or did his fellow Phoenix Police Officers murder him to keep him quiet on police corruption? No, this is not my attempt at a screenplay, but a real life story. (see "Did a Rogue Cop Kill Phoenix Police Sgt. Sean Drenth?")

This case has just had a new twist: A judge has ordered 5 Phoenix Police Officers and a city of Phoenix employee to undergo DNA testing. (From James King of Phoenix New Times "Five Phoenix Cops Ordered to Turn Over DNA in Sgt. Sean Drenth Death Investigation"): 

Five Phoenix police officers and one city of Phoenix employee who refused to turn over their DNA to detectives investigating the mysterious shooting death of Phoenix Sergeant Sean Drenth were ordered last week by a judge to give up their DNA -- much to their dismay.

The Phoenix Police Department is not claiming these 6 individuals are responsible for murdering Sgt. Drenth, but rather they need the DNA specimens to rule out DNA found at the scene. (From Peter Busch of KPHO CBS 5 "Are 5 Phoenix officers suspects in death of fellow cop?") 

Dozens of police officers were at the crime scene after Phoenix police Sgt. Sean Drenth was found shot to death near the Capitol last October.  That put DNA evidence all over the place, and ever since, the lead detective has been asking for voluntary DNA samples to cross people off the list.

In fact, official Phoenix Police Department statements is that the department is not even sure if Sgt. Drenth was murdered or committed suicide.  A couple of issues to mind. First, it is ironic that some officers refused to voluntarily submit DNA samples.  As Phoenix Police Officers Union Joe Clure said ""It's not a question of if they have anything to worry about, it's a matter of their constitutional rights just like with any other citizen".   I use the word ironic because I cannot even count how many times I have heard a police officer say during an investigation, interview, or trial something along the lines of "only guilty people don't cooperate with police investigations".  

Second, why is the Phoenix Police Department investigating this matter?  It seems to be a clear conflict of interest, and if Phoenix Police Officers are responsible, will Phoenix PD have the will or ability to uncover that? Shouldn't the Arizona Department of Public Safety, or even the FBI, be handling this investigation? The State Bar tells lawyers all the time that we must avoid "even the appearance of impropriety".   I think the Phoenix PD should heed that lesson as well and turn over the investigation to another police agency. And as I have said before a number of times, a civilian police commission for Phoenix might be a good idea to avoid disasters such as this one.  

P.S. Below I have included part of the mission statement of the Los Angeles Police Commission.  A Phoenix Police Commission with a similar mission statement would certainly be an upgrade. 

The Commissioners routinely spend 25-50 hours per week on Commission business, and serve as the citizens’ voice in police affairs and as a means of ensuring more responsive and effective City government. The Commissioners’ concerns are reflective of the community-at-large, and their priorities include implementing recommended reforms, improving service to the public by the Department, reducing crime and the fear of crime, and initiating, implementing and supporting community policing programs.

Should 16 year old Braden Matthew Rockriver be tried as an adult? Bill Montgomery, the Maricopa County Attorney, thinks so (by James King of the Phoenix New Times): 

Maricopa County Attorney's Office spokesman Jerry Cobb tells New Times that the Mesa 16-year-old accused of murdering his girlfriend's mother will be charged as an adult.  The boy, identified as Braden Matthew Rockriver, will be charged with first-degree murder, a class 1 dangerous felony; and first-degree burglary, a class two dangerous felony, Cobb says.

According to police "[f]ollowing a brief struggle with his girlfriend's mother, Rockriver shot her [Denna Strebe] in the head with the stolen pistol."  

The first degree murder allegation means the Maricopa County Attorneys' Office believes it can prove that Mr. Rockriver acted with "premeditation" in committing the murder.  In other words, unlike the classic example of someone who kills someone else "in the heat of passion"- for example, a husband who kills his wife when he finds her in bed with another man- premeditation means the suspect actually thought about the killing beforehand.  Premeditation does not require extensive planning and is commonly referred to as "reflection" (below is the standard jury instruction from ARS 13-1105):

"Premeditation" means that the defendant intended to kill another human being or knew [he] [she] would kill another human being, and that after forming that intent or knowledge, reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first degree murder from second degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. [The time needed for reflection is not necessarily prolonged, and the space of time between the intent or knowledge to kill and the act of killing may be very short.]

But what about charging Mr. Rockriver as an adult?  Under ARS 13-501, Mr. Rockriver, because he is 16 and charged with first degree murder, he shall be charged as an adult.  In statutory interpretation, the word "shall" means that the county attorney must follow the statute and does not have the right to charge Mr. Rockriver as a minor: 

13-501. Persons under eighteen years of age; felony charging; definitions 

The county attorney shall bring a criminal prosecution against a juvenile in the same manner as an adult if the juvenile is fifteen, sixteen or seventeen years of age and is accused of any of the following offenses: First degree murder in violation of section 13-1105...

While the statutory language seems to be clear, is it a good idea? Should a 16 year old boy be facing first degree murder charges?  Even though the United States Supreme Court has ruled out the death penalty for crimes committed while the defendant is under 18, should he be facing the death penalty?  Some states, for example South Carolina, have a death penalty provision for juveniles even though they are unconstitutional: 

South Carolina is one of 23 states where state law allows the death penalty for convicted murders less than 18 years old. State law here sets the minimum age for execution at 16 and makes age a mitigating factor — juries can consider it in making a decision on a capital sentence — until age 18. But because the U.S. Supreme Court ruled six years ago that executing murderers below the age of 18 was “cruel and unusual punishment,” it really doesn’t matter what South Carolina law says...

Needless to say, assuming the allegations are true and that government can prove them beyond a reasonable doubt, the punishment Mr. Rockriver should face is not easy to determine.  A couple years in custody and then release at 18 is obviously too lenient, but the rest of his life, let's say 50 years in custody, isn't that just too long? 

For a very good overview of the entire topic of juveniles in adult court, see "Prosecuting Juveniles in the Adult Criminal Justice System" by the Children's Action Alliance. For a good blog with plenty of information regarding sentencing, see the Life Sentences blog by Law Professor Michael O'Hear. 

If the news regarding the Ame Deal tragedy was not bad enough, there was another child death in Phoenix. Six year old Jacob Gibson died over the weekend.  As Ray Stern of the Phoenix New Times wrote:

Coming so soon after last month's mind-altering child-abuse story of Ame Deal and her final trip to the the box, the nearly equally messed-up case of Gibson and Paul makes Phoenix look like some kind of hell for children.

As reported in various media outlets, Jacob's case is no less tragic than Ame Deal's. Today's Arizona Republic (Phoenix 6-year-old boy dies; abuse suspected by JJ Hensley and Connor Radnovich): 

A 6-year-old Phoenix boy who was hospitalized with a swollen brain last week died Sunday from injuries that Phoenix police suspect the child received when one of his parents slammed the boy's head into a bedroom wall.

State officials were already in the process of investigating Jacob Gibson's parents, Jennifer Paul, 37, and Benny Gibson, 49, for alleged child abuse when the child's parents took him to Phoenix Children's Hospital.

The saddest part of this story is that Mr. Gibson and Ms. Paul were already on the Child Protective Service's radar as unfit parents, yet just like Ame Deal, CPS did not remove Jacob from his home. Please see the Arizona Republic story for details of how CPS investigated Jacob's parents, but did not do anything to actually keep him safe, like removing him from the home. 

As I wrote regarding the failure of CPS to protect Ame Deal:

[I]f an Arizona social services employee was deficient in his or her job performance by not removing young Ame from her home, [possibly]charging that social services employee with felony child abuse should be investigated and considered... if someone at CPS did not do their job properly, then that person should be facing more punishment than just losing his job.

My point here is that when someone takes an oath, and gets paid to do so, to protect children, then we should hold that person up to the highest standards possible.   In fact, in a case where a disabled 6 year old child was left in a hot car for more than one hour, the state is considering prosecuting the care givers. "The driver and aide, who are affiliated with the service provider for disabled people, Quest Alliance, could face a neglect charge".  Why wouldn't that same logic apply to CPS?  

If you watch the ABC 15 video above you will hear the CPS spokesman make the point that they will treat these cases as "learning experiences", which is rather callous and cold considering the lives of very young children are at stake.  The lives of children are not a school exam to be passed or failed.  If our criminal justice system cannot protect these children, then what good is it for?

And that brings me to my bigger point: whenever our society allows people in privileged positions, whether it be CPS employees, Wall Street, or Sen. Lori Klein, to escape due scrutiny and blame, our nation continues its sad transition from the "arsenal of democracy" to the horrid Prison Democracy. 

To read my interview with Aaron Granillo of local radio station KTAR, see "Valley attorney calls for CPS accountability".  To read my interview with Bryan Webb of ABC 15, see "Child Protective Services under fire after Phoenix boy dies", and to see it go to "Jacob Gibson Ame Deal Arizona Child Protective Services CPS."

I just checked the Maricopa County Superior Court website to see if Arizona State Senator Lori Klein is facing felony charges.  According to the website, she is not.  So now the question remains, why not? According to a news story at Arizona Republic, she admitted to pointed to a loaded handgun at reporter Richard Ruelas.  On a recorded conversation, she laughs and casually mentions the fact the handgun has no safety and has a laser site.  With this sort of evidence,  I can't help but think the obvious, that if Ms. Klein the state senator was instead Mr. Smith the car mechanic, she would already have been indicted. 

Assault is defined under ARS 13-1203 and includes "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury".  It is aggravated assault if the assault is committed with a deadly weapon or instrument (ARS 13-1204).  Deadly weapon includes an unloaded firearm. 

Endangerment, ARS 13-1201, is:

A. A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury 

B. Endangerment involving a substantial risk of imminent death is a class 6 felony.

The fact that Mr. Ruelas does not want the state to prosecute her is completely irrelevant.  In a criminal proceeding, the victim is the not the one to decide who the state will and will not prosecute. The victim is only a witness, not a party or litigant. 

And as far as "no harm, no foul"- no one was hurt so why prosecute her- that is completely irrelevant as well. I can't imagine someone stopped for drunk driving convincing a jury that he should not prosecuted because no one was hurt. And a loaded gun, even if unintentional with no ill will, is just as dangerous, if not more so, than a drunk driver.  I have seen many cases in which DUI defendants have been charged with felony endangerment for the risk they posed to other drivers, even if no one was actually hurt. 

More to the point, there is harm even if Mr. Ruelas was not himself hurt.  What about the person, and there has been plenty of publicity in this matter, who notices the fact Ms. Klein is not prosecuted and then decides there is nothing wrong with casually mishandling a firearm, and then someone is hurt as a result? The Arizona laws on firearms, just like FAA regulations, were written in blood.  And to ignore them because nothing bad may have happened this time, especially in a publicized case, puts people in danger. It seems both Mr. Ruelas and the authorities have forgotten that the law is not just to punish past crimes, but to prevent future ones as well.  And as I wrote with regard to the Susan Brock mess (Susan Brock Gets 13 Years: Arizona Sex Crimes Sentencing Part Two), the bigger the issue, the stronger message our criminal justice system must send. 

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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. 

JJ Hensley and Lisa Halverstadt of the Arizona Republic have a very important story about how the Maricopa County Sheriff's Office has botched over 400 very important, serious criminal investigations.  The investigations were botched in part because Arpiao subordinate Dave Hendershott wanted to protect a key investigator, Sgt. Kim Seagraves, who was involved in a public corruption investigation, an investigation that has gone nowhere. 

The Maricopa County Sheriff's Office failed to adequately investigate more than 400 sex-crime cases, including dozens in El Mirage, over a two-year period because of poor oversight and former Chief Deputy David Hendershott's desire to protect a key investigator from bad publicity...

Among the the allegations against Arpaio's office include: 

[R]oughly 15 death investigations, some of them homicides with workable leads, were never presented to prosecutors, and dozens of robberies and auto-theft cases never led to arrests.

[A case that was never properly investigate includes] a 15-year-old girl who said she was raped by two men outside an El Mirage shopping center and a 9-year-old who told a school counselor her grandmother's boyfriend often came into her bedroom at night, performing sex acts as she tried to sleep.

One report, on the 2005 death of Rachel Rodriguez, stood out. Arturo Hernandez Jr. emerged as a suspect in his girlfriend's murder almost immediately after her body was found. Hernandez was not arrested until long afterward, however, leaving Rodriguez's three young sons fearful.  A Phoenix detective hired by El Mirage was assigned to the case more than two years after the murder. Hernandez was finally indicted on a charge of second-degree murder last spring.

The important thing to note about this allegations is that they are not from an Open Borders advocacy group or the US Attorneys' Office or a left-leaning news organization, they are from MCSO's own internal investigation. Christina Boomer of KNXV ABC Channel 5 wrote "According to MCSO’s own internal investigation, as many as 400 sex crimes cases countywide may have been botched".  There is also a damning letter from El Mirage authorities to MCSO. 

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.