For the DEFENSE

for THE DEFENSE Volume 31, Issue 2 Maricopa County Public Defender Newsletter July, 2021 In This Issue: Litigating Issues Under the Litigating Issues Under the Arizona State Constitution Arizona State Constitution By Mikel Steinfeld, Defender Attorney By Mikel Steinfeld, Defender Attorney Page 1

One important area of constitutional litigation is often forgotten. If it’s not Opinion Summaries forgotten, it’s undeveloped. And even if developed to some extent, it’s April through June, 2021 underdeveloped. Page 12

That area is litigation under the Arizona Constitution. Trial Results April through June, 2021 Attorneys do a fine job of litigating the U.S. Constitution but often fail to Page 47 develop a persuasive separate argument for why the Arizona Upcoming Events Constitution provides greater protection. Page 49

One reason for this failure is the lack of a method. No Arizona court has set forth a process for analyzing our state Constitution. As a result, attorneys are often left arguing in the dark.

The goal of this article is to fill that gap and propose a method for litigating claims under the Arizona Constitution. While reasonable minds may differ on what makes a persuasive claim under the state Constitution, this method has two benefits. First, it is grounded in Washington case law. Because Arizona looks to Washington cases for guidance on constitutional issues (as will be discussed below), any argument developed using this approach has a solid foundation. Second, the approach is relatively comprehensive. No approach will ever cover all bases, but the approach proposed herein will cover most.

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With that said, this article will cover four issues: (1) Why attorneys need to separately litigate the Arizona Constitution, (2) Whether to file a separate motion, (3) The method attorneys should use when addressing the Arizona Constitution, and (4) Resources attorneys can rely upon when developing an argument.

Why attorneys need to separately litigate the scope of the Arizona Constitution.

When I first started attending trainings as a lawyer, there was a common refrain: Federalize. The notion was that claims often had better success in federal courts, so attorneys needed to make sure to preserve all claims under the federal Constitution.

This approach makes some sense. In 51 Imperfect Solutions: States and the Making of American Constitutional Law, Judge Jeffrey Sutton explains that from the 1940s through the 1960s “many state courts (and state legislatures and state governors) resisted protecting individual rights ….”i Lawyers of the era could thus be forgiven “for hesitating to add state constitutional claims to their newly minted federal claims.”ii

But this trend changed. When “Chief Justice Burger replaced Chief Justice Warren in 1968 … the kinds of advantages that once prompted resort to federal law and federal courts [became] more fluid than fixed.”iii As a result, Justice William Brennan posited in 1977 that attorneys should first turn to their state constitutions to protect individual rights.iv

The shift and consequent recommendation have not caught on. As Judge Sutton frames it, “the question is why just some, as opposed to most, lawyers took Justice Brennan’s advice--why American lawyers did not follow the example of American basketball players by taking two shots rather than one whenever the opportunity presented itself.”v

What I’ve seen in appeals is consistent with Sutton’s observations: attorneys do a good job citing the federal Constitution and developing federal constitutional arguments but do little to advance any unique argument under the Arizona Constitution.

The Arizona Constitution is not meant to follow lock-step with the U.S. Constitution. As our Supreme Court observed in Pool v. Superior Court, “[T]he concept of federalism assumes the power, and duty, of independence in interpreting our own organic law. With all deference, therefore, we cannot and should not follow federal precedent blindly.”vi And the Tenth Amendment to the U.S. Constitution itself says that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”vii

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As a result, rather than focusing just on federalization, attorneys should focus on developing at least two claims: one grounded in the federal Constitution and one grounded in the state Constitution.

The primary reason attorneys need to litigate Arizona constitutional issues early and often is because there is no opportunity to raise them later. For example, in State v. Ibeabuchi, our Court of Appeals refused to consider an Arizona constitutional issue because it had not been raised at the trial level.viii

And mere citation doesn’t save the day. Our Supreme Court recognized in State v. Jean that “[m]erely referring to the Arizona Constitution without developing an argument is insufficient to preserve a claim that it offers greater protection than” the federal counterpart.ix

To make an argument that the Arizona Constitution provides greater protection than the U.S. Constitution, attorneys must raise it at the trial court level. And attorneys must do more than merely cite the pertinent provision; they must develop the argument.

Some may rightly be frustrated by our appellate courts and see the issue as hopeless. Some Justices have been calling for arguments under the Arizona Constitution for years,x only to have our courts evade such issues or give them short shrift.xi And some may look at a case like State v. Mixtonxii and think there is no way of convincing our courts to provide greater protections.

To this, I have two responses.

First, the only way to ensure our appellate courts review Arizona constitutional claims is to properly raise the arguments at the trial court level. Following the advice in this article may not guarantee review, as courts will do what they see fit, but it will go a long way toward securing meaningful review of Arizona constitutional issues.

Second, for attorneys who believe cases like Mixton were wrongly decided, the only way to correct those mistakes is to thoroughly explore the language, history, and background of the Arizona Constitution, and explain the Court’s error.

Expanding on this, all cases work as independent threads in a greater tapestry of case law. Even if attorneys don’t win an issue in their specific case, advocating for a more protective reading of the Arizona Constitution will better protect clients and will improve the chances that our appellate courts adopt a better construction down the road. Jurisprudence is a development, a work in progress, not a final word.

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How to raise Arizona constitutional claims—The separate motion.

When I speak with lawyers about issues they’re raising under the Arizona Constitution, I always give one piece of advice: File a separate motion.

In response, I get looks of skepticism, sometimes disbelief.

I realize my recommendation requires more work. If attorneys want to do their Arizona constitutional arguments justice, it takes more work. And it takes more space.

There are four reasons why attorneys should file a separate motion.

First, a separate motion gives attorneys enough room to develop the argument. Space in a motion is already tight. At the trial court level, the limit is 11 double-spaced pages in 13-point font.xiii A reply gains only 6 more pages.xiv If attorneys are setting out the facts and developing an argument, that’s not much room. And following the method set out below, it’s not enough room to make a separate argument that the Arizona Constitution provides greater protections. A separate motion gives attorneys the room needed to develop the Arizona constitutional argument in sufficient depth and detail.

Second, a separate motion reinforces the notion that the Arizona constitutional argument is distinct. When attorneys conceptualize a motion to suppress as one motion, they tend to lose sight of the different arguments that can be advanced under the Arizona Constitution. Everything muddles into a single argument. And that single argument is built upon the federal Constitution. By crafting at least two separate motions, attorneys reinforce the separate purposes of the motions.xv

Third, a separate motion makes it clear that attorneys are asking for a separate ruling on Arizona constitutional grounds. A separate motion clarifies the unique nature of the Arizona constitutional argument to the court. If attorneys simply file a motion to suppress while citing the Fourth Amendment and Article 2, Section 8, the court is going to issue one ruling. And that ruling will likely be a Fourth Amendment ruling. But when attorneys file two or more motions—one on Fourth Amendment grounds and one on Article 2, Section 8 grounds—they increase the odds that the courts will rule separately on each. It forces the trial judge to engage each motion separately.

And fourth, a fully developed separate motion makes it clear to the appellate court that the state constitutional argument is preserved. If attorneys file a single motion that combines federal and state constitutional issues, there is a risk that appellate courts will lose sight of the unique issues. But when attorneys file a separate motion, the room for doubt at the appellate level is minimized.

As a result, any time an attorney is filing a motion that is constitutionally grounded, they should actually be filing at least two—a motion under the federal Constitution and one under our state Constitution.

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The method—The Gunwall analysis.

With an understanding that a separate motion should be filed for an Arizona constitutional claim, we’ll move on to how to build that argument.

As I noted above, Arizona jurisprudence has been scattershot on this question. No case has set forth any sort of method or test.

But Washington did in State v. Gunwall.xvi

Let’s first address why attorneys can rely upon a method employed in a Washington case when crafting an Arizona constitutional argument.

The Arizona Declaration of Rights is based largely on Washington’s.xvii As a result, Arizona courts can draw guidance from Washington decisions. In State v. Jean, for example, Justice Bolick noted that the “most salient” non-Arizona decisions regarding the construction of our Constitution are Washington’s.

Our Supreme Court also noted the Gunwall test favorably in Mixton.xix While neither the majority nor the minority used the test, neither voiced any qualms with the method of review. The majority simply pointed to some distinctions they believed were pertinent.xx

In Gunwall, the Washington Supreme Court set forth six nonexclusive criteria courts should consider when deciding whether the state Constitution should be construed to give more extensive protection than the U.S. Constitution: “(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.”xxi

Some of these factors meld together. For example, textual language, differences in the texts, and structural differences all look at similar issues. But a consideration of each issue will allow for a better understanding of how to advance an Arizona constitutional argument.

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1. Textual Language. This factor looks to the specific language of the state Constitution. A great example of this is Article 2, Section 8’s private affairs clause and express protection of the home. This language was the source of our Supreme Court’s decision in State v. Bolt that the Arizona Constitution provides special protection for the home.xxii

2. Differences in the texts. This factor looks to differences between the U.S. and state Constitutions. The text in the state Constitution may be more explicit, as with Article 2, Section 8, discussed above. The state Constitution may include a provision for which there is no federal counterpart. For example, Article 2, Section 24 protects the right to an appeal, whereas nothing in the U.S. Constitution guarantees that right. But even when the provisions are largely identical, the Gunwall Court noted that “other relevant provisions of the state Constitution may require that the state Constitution be interpreted differently.”xxiii

3. State constitutional and common law history. While the initial recitation only referenced constitutional history, in its explanation the Gunwall Court included common law history as well. This means there are two things attorneys should look at in this step. First, attorneys should look at records from the Arizona Constitutional Convention to assess the drafters’ intent. Second, attorneys should look at the common law when Arizona’s Constitution was written. This can be a difficult inquiry. This article will offer some resources for developing this argument in the next section.

4. Preexisting state law. The Gunwall Court separately recognized the importance of “Previously established bodies of state law” to the inquiry.xxiv Because this law might “be responsive to concerns of its citizens long before they are addressed by analogous constitutional claims,” it is helpful in assessing the scope of constitutional rights subsequently established.xxv

5. Structural differences. This is a tricky factor. In Gunwall, the Washington Supreme Court observed that the U.S. Constitution “is a grant of enumerated powers to the federal government,” whereas the Washington Constitution “serves to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives.”xxvi The Court thus concluded that the Washington Constitution could be construed as a guarantee, rather than a restriction, of fundamental rights.

The same structural considerations exist in Arizona and might be stronger here. Article 1 of the Arizona Constitution is a designation of the boundaries. The second Article is the Declaration of Rights. All other articles and sections concerning the nuts and bolts of how the newly formed state would function followed from the foundation of Article 2’s Declaration of Rights.

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Additionally, the first two provisions of our Declaration of Rights affirm the preeminence of individual rights. Section 1 notes that “A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.” And Section 2 observes that “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”

Arizona’s Constitution is structured in a manner that places the rights of the individual at the forefront. This structural difference from the U.S. Constitution--which recognizes the rights of the individual as an afterthought via amendment --warrants an enhanced protection of rights in Arizona.

6. Matters of state or local concern. Finally, where an issue is of uniquely state and local concern, the Gunwall test recognizes that reliance upon a state constitution may be more appropriate. Where there is a need for national uniformity, however, a focus on the federal Constitution may be preferable. It is worth noting, however, that the protections guaranteed by the federal Constitution are the floor below which a state is not permitted to drop. xxviii

These six considerations may not cover everything an attorney wants to address. The method understands that and casts these six factors as nonexclusive. If an attorney has another argument, they should feel free to raise it. But the Gunwall test gives attorneys a starting point to ensure any argument raised under the Arizona Constitution has the necessary depth and clarity to preserve review on appeal.

Resources for your argument.

The Gunwall method is not an easy one to meet. It demands a lot of research into textual differences, common law, preexisting state law, and so forth. That research can be confusing, demanding, and time consuming. This article thus offers some resources for the textual, constitutional history, common law, and preexisting state law analyses.

Resources for textual analysis.

For a number of the Gunwall criteria, the most important resource is going to be a copy of the Arizona Constitution and the U.S. Constitution. What is the plain reading of Arizona’s provision? Is there a counterpart in the U.S. Constitution? If not, that’s important. If yes, how does the language and structure compare?

When going through this analysis, attorneys must ensure they consider the principles and canons of statutory construction.

The most comprehensive resource for this analysis is the book Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan Garner. Reading Law is also helpful for assessing the meaning of statutes and rules.

For those who don’t have or can’t access a copy of Reading Law, attorneys can consult an outline titled “The Rehnquist Court’s Canons of Statutory Construction.”xxix While not as complete as Reading Law, this outline provides a sufficient explanation of many of the canons of construction.

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With specific principles or canons at hand, Westlaw becomes a valuable tool to find Arizona cases applying those principles or canons.

Using a resource like Reading Law or the outline as a starting point will permit attorneys to efficiently research cases and explain why the language of the Arizona Constitution is more powerful or provides greater protections than the language of the U.S. Constitution.

Resources for constitutional history analysis.

As with nearly any legal research these days, Westlaw is a good starting point. But it’s not a perfect one.

An attorney can quickly determine if there are any decisions from the Arizona Territorial Supreme Court by entering the basic search terms into Westlaw and then organizing the results by date. That can be helpful when addressing constitutional or common law history, or preexisting state law.

Attorneys should also consult law review articles. Even when there is no on-point case, an attorney can often find their desired point (or a sufficiently similar one) in an article or treatise.

When advancing an Arizona constitutional argument, attorneys should understand Arizona’s territorial and constitutional history. John Leshy’s book The Arizona State Constitution is fantastic, but it is prohibitively expensive. A less expensive option that is still good is Toni McClory’s book Understanding the Arizona Constitution.

Short of a book, likely the best article to discuss Arizona’s constitutional history is Leshy’s The Making of the Arizona Constitution.xxx It provides a detailed history of Arizona’s path to the convention, the convention itself (including a discussion of some of the members), and the themes that permeated the convention. While not as thorough, former Chief Justice Rebecca Berch’s A History of the Arizona Courts provides much of the information an attorney might need to develop an argument.xxxi Justice Berch also included a good discussion of Arizona history in her article Celebrating the Centennial.xxxii And I wrote an article called Violating the Inviolate for the Law Journal for Social Justice that explored our constitutional history in some depth.

The inquiry into history doesn’t stop there. To address the constitutional history provision, an attorney will want to know what the delegates did. The best source for this is John S. Goff’s collection The Records of the Arizona Constitutional Convention of 1910. This can be accessed at local law libraries--the ASU Law Library has a copy, and the Superior Court law Library lists a copy in its catalog.

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Judge George Anagnost’s summary, The 1910 Arizona Constitutional Convention is helpful and more readily accessible.xxxv Also, Paul Eckstein, Jerica Peters, and Andrew Gaona have a good historical discussion in What Didn’t Make It Into the Arizona Constitution.xxxvi And again, my article Violating the Inviolate addresses the constitutional proceedings for Article 2 to some degree.

Since a number of arguments raised in the criminal defense context will be premised upon the privacy right established by Article 2, Section 8, Timothy Sandefur’s article The Arizona “Private Affairs” Clause is invaluable.xxxviii

Finally, an attorney can access the Minutes of the Constitutional Convention of the Territory of Arizona online through the Arizona Memory Project.xxxix The Arizona Memory Project is a fantastic source for a lot of historical documents, and will be discussed in more depth below. The Minutes include a good portion of what’s in Goff’s records. But what’s missing can be important. Goff’s collection includes not just the minutes, but the language of each proposition. That said, the Minutes are a good starting point. While the document is not searchable, one of the indexes is organized by Proposition number. The Declaration of Rights was Proposition 94. It also may be helpful to know that Propositions 71, 98, 104, and 116 were also proposed Bills of Rights.

Resources for common law analysis.

What about the other side of the historical prong—Common law? Westlaw is particularly helpful here. Pertinent search terms paired with “common law” can lead to a direct hit. And the search can be expanded beyond just Arizona. Any jurisdiction can help an attorney establish the common law in place during our Territorial times.

Another good place to turn to uncover the common law is Joel Prentiss Bishop’sxl Commentaries on the Criminal Law, Volumes 1 and 2,xli and Commentaries on the Law of Criminal Procedure, Volumes 1 and 2.xlii Justice Thomas cited Bishop’s work extensively as demonstrating the common law in his concurring opinion in Apprendi v. New Jersey.

Resources for preexisting state law analysis.

Finally, the Arizona Memory Project is the ideal source for evaluating preexisting state law. The Project has a Historical Statutes Collection that includes all the Territorial Codes.xliv An attorney can easily access the Howell Code that went into effect in 1865 (the first code of laws for the Arizona Territory), the 1871 Code, the 1877 Code, 1887 Code, and 1901 Code. While these take a while to load, they are all of excellent quality and are text searchable.

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Where to find these resources.

Many of the resources included in this article can be found online. When possible, I’ve included a hyperlink.

Other resources--such as some of the books--can be found in the Maricopa County Office of the Public Defender library. For example, Rena Glitsos recently donated a copy of McClory’s Understanding the Arizona Constitution to our library. Even if not in the library, some attorneys in appeals have personal copies of books like Leshy’s The Arizona State Constitution and Scalia and Garner’s Reading Law.

Finally, our office SharePoint homepage includes a number of resources, including some of the articles referenced here.

Conclusion.

Litigating issues under the Arizona Constitution can feel daunting and time-consuming. But once an attorney goes through it the first time, they will find that many themes repeat themselves. While a separate textual analysis will be required for different provisions, the constitutional history will likely be similar. And although the common law and Territorial codes will be different, attorneys will become more proficient with the research.

But what an attorney can’t ignore is the importance of litigating issues separately under the Arizona Constitution. If an attorney wants to do the best they can for their clients, they must work with a view toward developing a separate argument under the Arizona Constitution. And if we as attorneys want to improve how our courts view the Arizona Constitution, we must start by making the argument.

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______i. Judge Jeffrey Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 14 (Oxford 2018). ii. Id. iii. Id. at 15. iv. Justice William Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). v. Sutton, 51 Imperfect Solutions 15. vi. Pool v. Superior Court In and For Pima County, 139 Ariz. 98, 108 (1984). vii. U.S. Const. Amend. 10. viii. State v. Ibeabuchi, 248 Ariz. 412, ¶ 20 fn.2 (App. 2020). ix. State v. Jean, 243 Ariz. 331, ¶ 39 (2018). x. E.g. Clint Bolick, The Unused Toolbox: Forging a Dynamic Future for Arizona’s Constitution, Arizona Attorney Magazine 40 (October 2018); Rebecca White Berch, Celebrating the Centennial: A Century of Arizona Supreme Court Constitutional Interpretation, 44 Ariz. St. L. J. 461, 473 (2012); Ruth McGregor, Recent Developments in Arizona State Constitutional Law, 35 Ariz. St. L. J. 265, 275-76 (2003). Justice Clint Bolick also brought up the need to evaluate the state Constitution during his interview on November 20, 2015, starting at time marker 3:39. You can access the video of his interview on the Supreme Court website here. xi. E.g. State v. Adair, 241 Ariz. 58, ¶ 24 (2016). xii. State v. Mixton, 250 Ariz. 282 (2021). xiii. Ariz. R. Crim. P. Rules 1.6(b)(1)(B) & 1.9(c). xiv. Ariz. R. Crim. P. Rule 1.9(c). xv. Depending on the issue, you may have even more motions. A Motion to Dismiss for Pre-Accusation Delay is a prime example. There is currently a split regarding the proper test under the federal Constitution. Most states (including Arizona) require the defendant to prove the state delayed the indictment for strategic reasons. A minority of jurisdictions, however, only require the defendant to prove prejudice and then shift the burden to the state to explain the reasons for delay. This would then justify at least three motions: A) a motion under the federal Constitution as Arizona applies it, B) a motion under the federal Constitution asserting the minority approach is correct, and C) a motion arguing the Arizona Constitution specifically supports the minority approach (or a different approach that is still beneficial to your client). Similarly, suppression motions might demand multiple motions to adequately preserve a claim’s different permutations. xvi. State v. Gunwall, 720 P.2d 808 (Wash. 1986). xvii. See Goff, Records of the Arizona Constitutional Convention, 658; Schulz v. City of Phoenix, 18 Ariz. 35, 42 (1916). xviii. State v. Jean, 243 Ariz. 331, ¶ 96 (2018) (Bolick, J., concurring). xix. Mixton, 250 Ariz. 282, ¶ 57. xx. Id. at ¶ 60. xxi. State v. Gunwall, 720 P.2d 808, 811 (Wash. 1986). xxii. State v. Bolt, 142 Ariz. 260, 265 (1984). xxiii. Gunwall, 720 P.2d at 812. xxiv.Id. xxv. Id. xxvi.Id. xxvii.Id. xxviii.See Brush & Nib Studo, LC v. City of Phoenix, 247 Ariz. 269, ¶ 171 (2019) (Bolick, J., concurring) (citing American Legion v. American Humanist Ass’n, 139 S.Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring); J. Sutton, 51 Imperfect Solutions (2018); and Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977)). xxix.The outline can be accessed at: https://www.ncsl.org/documents/lsss/2013pds/rehnquist_court_canons_citations.pdf. xxx. John D. Leshy, The Making of the Arizona Constitution, 20 Ariz. St. L.J. 1 (1988). xxxi.Rebecca White Berch, A History of the Arizona Courts, 3 Phoenix L. Rev. 11 (2010). xxxii.Rebecca White Berch, Megan K. Scanlon, & Jared L. Sutton, Celebrating the Centennial: A Century of Arizona Supreme Court Constitutional Interpretation, 44 Ariz. St. L. J. 461 (2012). xxxiii.Mikel Steinfeld, Violating the Inviolate, 13 L. J. Social Justice 24 (2020). xxxiv.The Records of the Arizona Constitutional Convention of 1910 (John S. Goff ed., 1991). xxxv.George T. Anagnost, The 1910 Arizona Constitutional Convention: The Daily Proceedings and the Question of Original Intent as an Interpretive Guide, 3 Phoenix L. Rev. 43 (2010). xxxvi.Paul Eckstein, Jerica Peters, D. Andrew Gaona, What Didn’t Make It Into the Arizona Constitution, 44 Ariz. St. L. J. 513 (2012). xxxvii.Mikel Steinfeld, Violating the Inviolate, 13 L. J. Social Justice 24 (2020). xxxviii.Timothy Sandefur, The Arizona “Private Affairs” Clause, 51 Ariz. St. L. J. 723 (2019). xxxix.The Minutes of the Constitutional Convention of the Territory of Arizona can be accessed at https://azmemory.azlibrary.gov/digital/ collection/statepubs/id/5876. xl. You can access links to several of Bishop’s volumes at a http://onlinebooks.library.upenn.edu/webbin/book/lookupname?key=Bishop% 2C%20Joel%20Prentiss%2C%201814-1901. xli. Joel Prentiss Bishop’s Commentaries on the Criminal Law has several editions. You can access many of them at the link in footnote 26. Or, for a starting point, you can find Volume 1 of the 7th Edition, published in 1882, at https://babel.hathitrust.org/cgi/pt? id=coo1.ark:/13960/t8qc0kt9f&view=1up&seq=7, and Volume 2 of the 7th Edition at https://babel.hathitrust.org/cgi/pt? id=coo.31924020147496&view=1up&seq=7. xlii. Again, like Commentaries on the Criminal Law, there are several editions you can access at the link in footnote 26. Or you can access Volume 1 of the edition published in 1866 at https://babel.hathitrust.org/cgi/pt?id=coo.31924020198531&view=1up&seq=15, and Volume 2 at https://babel.hathitrust.org/cgi/pt?id=coo.31924020198564&view=1up&seq=9. xliii. Apprendi v. New Jersey, 530 U.S. 466, 510-15, 519-20, 522 (2000). xliv. You can access the entire collection at https://azmemory.azlibrary.gov/digital/collection/hxazstatutes/search.

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Arizona Court of Appeals, Division One, by Jason Ceola, Defender Attorney Arizona Court of Appeals, Division Two, by Tammy Wray, Defender Attorney Arizona Supreme Court, by John Gattermeyer, Defender Attorney United States Court of Appeals, 9th Circuit, by Meghan White, Defender Attorney United States Supreme Court, by Madeline Mayer, Defender Attorney

STATE OF ARIZONA v. LEONARD MICHAEL DIGENO, 2 CA-CR 2020-0192-PR - Opinion

Relying on State v. Payne, 223 Ariz. 555 (App. 2009), Digeno argues that a term of his plea agreement requiring that he pay $750 to the “Cost of Prosecution Fund” was illegal and must be vacated.

¶10 In Payne, the trial court imposed a $1,000 “prosecution fee,” pursuant to a Pinal County Ordinance, that was payable to the county and deposited into a fund benefitting the Pinal County Attorney’s Office. The ordinance directed, “Upon a defendant’s conviction at trial, the Justice Court shall, and the Superior Court is requested, to impose and collect a Prosecution Fee pursuant to the Prosecution and Supervision Fee Schedule.” ¶11 After reviewing the relevant legislative history, we recognized “a potential conflict . . . between the ordinance and Arizona’s statutory scheme addressing punishment for felonies.” We next examined the “prosecution fee” to determine whether it was a “fee,” which would be permissible, or a “fine,” which would not. We concluded that the “prosecution fee” was “more akin to a punitive fine than a compensatory fee.” Accordingly, we determined that “neither § 11-251.05 nor § 11-251.08 clearly authorize[d] the type of county prosecution fee imposed,” and we vacated the prosecution fees.

The administrative order at issue here:

¶2 In 1994, the presiding judge of Gila County Superior Court signed Administrative Order No. 94-ELD16, providing, “A Cost of Prosecution Fund has been established wherein persons who have admitted or been found guilty of violating the laws in Gila County, may be ordered to contribute to the cost incurred by both the County Attorney’s Office and the Superior Court in resolving these matters.” And it orders that “upon receipt of monies for Costs of Prosecution, the Clerk of the Superior Court” must transfer sixty percent to the County Attorney’s Cost of Prosecution Fund and forty percent to the superior court, with thirty percent going to Superior Court Cost of Prosecution Fund and ten percent going to the Clerk of the Court Cost of Prosecution Fund.

¶14 Unlike the county ordinance in Payne, Administrative Order No. 94-ELD16 does not request, let alone require, the imposition of costs of prosecution in any case. Rather, it provides that if such costs are imposed, they shall be distributed among the county attorney, the superior court, and the clerk of the court. Thus, the presiding judge’s purpose in issuing the order appears to have been purely administrative—detailing the distribution of costs of prosecution once imposed.

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¶15 We must next determine what authority, if any, the presiding judge of Gila County Superior Court relied on in issuing Administrative Order No. 94-ELD16 and whether that authority “expressly provides or necessarily implies” that trial courts can impose costs of prosecution on convicted defendants.

¶18 As our starting point, A.R.S. § 13-603(E) enumerates the “sentences [that] may be imposed” and those sentences include a fine. Similarly, § 13-603(D) provides, “If the court imposes probation it may also impose a fine as authorized by chapter 8 of this title.”

¶19 With that background in mind, we turn to § 13-804(A), which provides that the court “may order that all or any portion of the fine imposed be allocated as restitution to be paid by the defendant to any person who suffered an economic loss caused by the defendant’s conduct.” These statutes thus allowed the trial court to impose a fine of $150,000 or less on Digeno, in addition to imprisonment or probation, upon his conviction of the offenses in the plea agreements.

¶20 In State v. Maupin, 166 Ariz. 250, 252 (App. 1990), this court explained that the legislative history behind § 13- 804 “reflects an intent to allow a trial court to require a defendant, as part of a sentence, to reimburse the state for the costs of prosecution.” Although Maupin is thirty years old, we are not aware of any authority overruling it or any statute superseding it. In reaching our conclusion in Maupin, 166 Ariz. at 252, we also relied on § 13-806(I),4 which provides: “Following the entry of the judgment and sentence in the criminal case, if the trial court sentences the defendant to pay a fine or awards costs of investigation or prosecution, the state may file a restitution lien pursuant to this section for the amount of the fine or costs.” Although this statute does not expressly provide that trial courts have authority to impose costs of prosecution on convicted defendants, it necessarily implies as much by allowing the state to request restitution liens for such costs.

¶21 Maupin suggests that costs of prosecution include more than costs incurred directly by the county attorney. In addition, the language of § 13-804(A) broadly provides that “any portion of the fine imposed [may] be allocated as restitution . . . to any person who suffered an economic loss,” suggesting that costs of prosecution could extend to costs incurred by the court.

The court holds that, by administrative order, as part of the statutory fine, it can impose costs of prosecution on a defendant and can direct that those costs be paid to the court, the county attorney, or any government agency that suffers “economic loss” as a result of the prosecution. The court doesn’t seem to consider that the agencies aren’t suffering a “loss,” they’re doing the work they were created to do. The court seems unaware of the conflict inherent in funding itself and the agent of prosecution out of the pockets of convicted folks.

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JAMIE CLEM v. PINAL COUNTY; MARK LAMB, 2 CA-CV 2020-0101 - Opinion

This is not a criminal case, but a ruling on litigation against Pinal county for the death of an inmate. There’s very detailed summary of issue (collateral estoppel) and claims (res judicata) preclusion re a federal court ruling’s impact on related state litigation. By the way, using words like judicata, estoppel, and privity makes us feel smart.

Skylar Clem died of morphine intoxication while in Pinal custody. His mother filed state negligence and gross negligence claims against the county, the sheriff in his official capacity, and other unnamed defendants. The next year, she filed a second state case asserting 1983 claims against several detention officers in their individual capacity. The alleged facts were essentially the same as in the first case. Two defendants in the second case removed that case to federal court. Eventually, the plaintiff dismissed claims against all the federal defendants except Officer Gomez.

The district court granted Gomez’s motion for summary judgment with prejudice, finding he was entitled to qualified immunity. Specifically, the district court found that although Gomez had intentionally chosen not to conduct a face-to- photo verification as required by the jail’s policy, his conduct did not amount to deliberate indifference such that a constitutional violation had occurred. It further concluded the record provided “no evidence” Gomez’s “conduct caused Skyler’s injuries.” In drawing these conclusions, the district court relied on the parties’ undisputed facts regarding the conditions of Skyler’s incarceration and his death.

The state court granted a motion for summary judgment against mom, concluding the judgment in federal court required it to dismiss the case on grounds of res judicata and issue preclusion.

Because the prior judgment was issued by a federal court, federal law determines whether that ruling precludes a later state court claim on the ground of res judicata. For res judicata to apply, the two actions must share “(1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties.” Res judicata did not apply because a government official named in an individual capacity does not represent the interests of the government and should not be considered its legal privy.

The district court’s ruling regarding causation precludes the negligence claims to the extent those findings apply to Gomez’s actions. But we disagree that the district court’s findings warrant complete preclusion of Clem’s respondeat superior negligence claims against the County and the Sheriff. Gomez’s qualified immunity from Clem’s constitutional claims does not translate to immunity from the state-law negligence claims for the County or the Sheriff.

Federal courts will decline to bar successive litigation through issue preclusion when the parties in the first action were not in privity with the parties in the subsequent action. However, in contrast to the treatment of privity under res judicata, federal courts considering issue preclusion generally do not require strict mutuality between parties.

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The district court’s causation determination regarding Gomez’s conduct is fatal to the negligence claim against the County and the Sheriff to the extent that claim rests on Gomez’s conduct. We thus affirm, in part, the trial court’s grant of summary judgment on the ground of issue preclusion. This ruling extends only to the finding that Gomez’s conduct did not cause Skyler’s death.

The district court did not resolve whether the County or the Sheriff might be vicariously liable for any actions of the other employees. Furthermore, Clem’s allegations regarding the actions of the other employees were not actually litigated, as they were dismissed on the pleadings pursuant to the Rule 12(b)(6) motion and were not re-alleged in Clem’s amended complaint. Therefore, we conclude that Clem’s vicarious liability negligence action against the County and the Sheriff is not wholly barred by issue preclusion.

STATE OF ARIZONA v. JOHN ANTHONY MAJALCA, 2 CA-CR 2020-0094 - - Opinion

Division Two did not agree with Mr. Majalca’s arguments that officers unconstitutionally prolonged his traffic stop for a canine sniff.

The traffic stop is so ridiculous that it’s entertaining, but Division 2 says they didn’t even need it.

Tucson PD’s “Community Response Team” (CRT) received information that Mr. Majalca was selling a lot of drugs. The information included his name, address, car, and that he used “a small, black, hand-held safe” to transport his merchandise. Based on the information, they watched him for six months. While watching a suspected drug house in a “high crime area” they saw Majalca come out carrying a small black box that he put in his trunk. The CRTs called for a canine sniffer and followed Majalca, noting several traffic violations. They said his driving looked like a “heat run,” ie that he was “driving in a manner that would make it difficult to be surveilled or followed. “

A uniformed officer did a long traffic stop. The officer,

Asked for license and registration and went back to his cop car, THEN

Came back to ask for a phone number and to question Majalca about his bad driving and then went back to his cop car again to fill out the citation and check for 911 calls about Majalca’s super-bad driving, THEN

Came back to Majalca to do an HGN and ask where he had been and where he was going. (Majalca didn’t tell Officer Friendly about the drug house or the drugs in his trunk). THEN

Went back to the cop car to print the citation but the printer wasn’t working right so he had to “readjust and restart” it.

Low and behold, before our officer could explain and issue the citation, who shows up but the drug sniffer! I bet you can guess what the sniffer sniffed.

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Majalca relied on Rodriguez v. United States, 575 U.S. 348 (2015) and State v. Sweeney, 224 Ariz. 107 (App. 2010) and argued that the uniformed officer unlawfully prolonged the traffic stop to give time for the canine unit to arrive, thereby violating his Fourth Amendment rights.

The trial court denied the motion to suppress, concluding that “the traffic stop was supported by reasonable suspicion and was not delayed for an unreasonable time period.”

District 2 said the traffic violations didn’t matter. Because the “totality of the circumstances” and the officers’ “training and experience” and “collective knowledge” were enough to form an independent reasonable basis for the stop - that Majalca was involved in drug sales. And the “mission of the stop” wasn’t complete until the sniffer sniffed for the drugs.

E.H. V. SLAYTON [SLAYTON III], --- P.3d ----, 2021 WL 1540512 - website

This is the third opinion (two from Div 1, one Supreme Court) spawned by this child-homicide that occurred outside of Flagstaff as it continues to break ground in the field of Victim’s Rights.

E.H. is the sister of J.H., who was killed by way of gross child neglect by his aunt, who was convicted after trial; with the involvement of three other adults who entered guilty pleas. In the first opinion, E.H.’s status as a “victim” was affirmed. In the second opinion, restitution caps in pleas without victim’s consent were recognized as unenforceable. As a result, the $500,000 cap in the three plea agreements—which was jointly and severally apportioned between those three defendants—was nullified because E.H. did not consent.

Which leads us to this case, which arose as a result of E.H.’s request for $3,322,880…and 20 cents…in restitution representing J.H.’s lost future wages. All four defendants objected. Two defendants argued that the restitution claim was waived because it was not presented at their sentencings. The superior court agreed that the restitution claim was untimely and denied it. The court believed the amount of the restitution request would have been a significant factor for the three defendants in their decisions to take plea offers. The Supreme Court’s opinion regarding restitution caps came out after the restitution request was denied. As a part of its decision the Supreme Court directed the superior court to allow the three defendants to withdraw from their pleas after a showing that the inclusion of a restitution cap was material to the decision to take pleas. No defendant attempted to withdraw, so E.H. filed this special action.

Holding: The court of appeals noted that while the superior court may set a reasonable deadline to make a restitution claim, it did not do so here. There is no requirement that a restitution claim be made by sentencing. And in general, no rule or statute sets a deadline for making a restitution claim. Thus, absent an order from the superior court there was no basis to time-bar this claim. All defendants were on notice that E.H. regarded herself as a victim—and that status was later affirmed by the CoA. Further, because she objected to the $500,000 restitution cap they were on notice that any restitution claim may be above that amount. Though E.H. must still prove the amount of loss (assuming a hearing is requested), she is not barred due to untimeliness from bringing her claim.

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IN RE JOSEPH L., --- P.3d ----, 2021 WL 2548830 (App. 2021) - website

Joseph was adjudicated delinquent for kidnapping and four counts of sexual assault after assaulting a 16-year-old girl in a bathroom of her home. As part of his delinquent plea he agreed to pay “all victims” up to $10,000 in restitution.

After the offense, the victim developed for the first-time symptoms of mental distress evinced by several suicide attempts and engagement in other self-harm. She was diagnosed with PTSD and her trauma escalated after she was interviewed by police about the incident. Ultimately, her Mother left work to address an emergent episode and was fired. Mother then chose to stay home to care for and protect her daughter rather than find other employment. This was an independent decision made absent any doctor/therapist recommendation. She was unemployed for 9 months and calculated her lost wages at $9,600. The court ordered Joseph to pay $9,927.58, which included all lost wages.

Joseph brought this appeal arguing that Mother’s lost wages were unrecoverable consequential damages.

The court disagreed. It noted that economic loss is any loss incurred by a person as a result of the commission of an offense, including lost interest, earnings, and other losses that would not have been incurred but for the offense. It notes that this specifically excludes consequential and punitive damages, or damages for pain and suffering.

Joseph argued that Mother made an independent decision not to return to work and thus her lost wages do not flow from his offense. The victim’s PTSD, self-harm, and suicide attempts caused Mother’s need to stay home and supervise/care for her daughter. And the need to stay home caused Mother’s period of unemployment. Thus, Mother’s unemployment flows from Joseph’s conduct and that causal chain is not broken by her independent decision to care for her child. The court noted that not every victim-parent’s decision to forego employment will be attributable to a delinquent offender’s conduct, but in this case the causal link existed.

NOTE: The group of individuals who can recover restitution under delinquency statutes (“any person who suffers an economic loss”) is broader than those who can recover under criminal statutes (victim or the immediate family of a deceased victim), so it is unlikely that the case is directly applicable to criminal cases where the immediate family of a surviving victim would not be able to recover.

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STATE V. NELSON, --- P.3d ----, 2021 WL 2460632 (App. 2021) - website

Nelson was convicted of Agg. DUI for driving without an interlock device. He was first convicted of misdemeanor extreme DUI on September 15, 2015. He was ordered to have an interlock device installed in any vehicle he drove after driving privileges were reinstated, and that order was to last for 18 months.

December 1, 2015, Driving privileges were reinstated, and the interlock could be removed 18 months later on June 1, 2017.

March 18, 2016, MVD was notified that interlock was removed after Nelson sold his car. MVD sent notice of corrective action stating his license would be suspended until proof of compliance was provided. Notice stated the device must be installed for 12 months from date proof is received unless a different period is specified.

April 1, 2016, Interlock installer sent MVD proof of new interlock installation.

May 12, 2016, Nelson appeared in person at MVD providing proof of compliance and received another restricted license stating “ignition interlock.” MVD calculated that Nelson could not remove the interlock until November 12, 2017 (18 months after proof of compliance). There was no evidence that MVD notified Nelson of this new calculation.

November 10, 2017, Nelson was stopped for speeding. He was driving a vehicle without an interlock; and he was under the influence. He was charged with Agg DUI for being impaired to the slightest degree while required to have an interlock device. At trial he requested an instruction that knowledge of the interlock restriction was a required element. This instruction was not given, and he was convicted.

Holding: knowledge of the interlock restriction is a required element of the offense.

On appeal, the Court analogized this situation to that of State v. Williams, where the AZ S.Ct. held that a defendant could not be convicted of DUI with a suspended license without proof of knowledge of the suspension.

In that case, the Supreme Court cited ARS § 13-202.B, which states in part: “If a statute defining an offense does not expressly prescribe a culpable mental state that is sufficient for commission of the offense, no culpable mental state is required for the commission of such offense, and the offense is one of strict liability unless the proscribed conduct necessarily involves a culpable mental state.” The DUI statute in that case didn’t include any mens rea requirement, but the Court reasoned that someone must know they do not have a drivers license before they can be punished for driving without one. The Court listed the possibility of administrative error permitting MVD to suspend someone’s license without their knowledge as one reason for its holding.

In this case, just as the AZ Supreme Court feared in Williams, an administrative error caused Nelson to be unaware of the third and latest date that his interlock device could be removed (technically that’s the issue for retrial, but that’s the argument on appeal), underscoring the importance of proving knowledge that the interlock restriction applied.

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TRINH V. GARCIA, --- P.3d ----, 2021 WL 1257225 (App. 2021) - website

Trinh, a co-owner of a psychiatry practice, was investigated by the AG’s office for practicing medicine without a license. Trinh has a medical degree but is not a licensed physician; the other co-owner is a licensed physician. The AG presented evidence to the grand jury that Trinh held himself out to the public as a doctor; that he made medical determinations and performed procedures without his partner’s involvement; and that he altered a prescription without the partner’s consent.

Trinh submitted a Trebus letter outlining defenses to the allegations, but in providing the letter to the state he specifically noted he did not wish to testify before the grand jury. The Trebus letter explained the procedures Trinh utilized; described his education, experience, and employment history; provided the practice’s billing structure to show no money was made as a result of misrepresentations of his licensure; indicated that the partner was recorded as the prescribing physician; and requested the State clarify that unlawfully using the title MD is legally distinct from unlawful practice of medicine. The State acknowledged receipt of the letter but neither informed the grand jury of its existence nor presented a summary of its contents. The grand jury then returned an indictment on 11 felony charges.

A remand motion was denied by the trial court, which reasoned that because Trinh specified he did not wish to testify the State was only required to present “clearly exculpatory evidence” instead of “all exculpatory evidence” or the level of detail requested by a defendant.

Issue: When a defendant communicates they do not wish to testify before the grand jury and instead submits a Trebus letter of the Defendant’s version of events –containing potentially exculpatory evidence—is the State obligated to notify the grand jury that such a letter exists?

Holding: Yes, the State must notify the grand jury that such a letter exists, even if the defendant’s chooses not to testify. It is then the grand jury’s decision to receive the letter or not.

The State argued that because the Defendant choose not to testify before the grand jury it was not obligated to do anything but present clearly exculpatory evidence and that it didn’t even need to inform the grand jury that the Defendant’s letter existed. The court obviously rejected this argument, noting the Trebus decision interpreted ARS § 21-412 to require that “the grand jury is to decide if it wishes to hear a defendant or his evidence” and thus that requirement can only be effectuated when the state notifies the grand jury of the existence of such evidence. The court spent several pages analyzing the existing body of Arizona law, as well as that of other jurisdictions, that support the conclusion that the State is obligated to inform the grand jury when a defendant wishes to present evidence even if only in the form of a letter.

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It’s just that here apparently the error was harmless. so nothing else happens. The court is “confident beyond a reasonable doubt” that Trinh’s letter wouldn’t have changed anything because even with the letter the State had enough evidence to get an indictment and there was no challenge to the evidence that Trinh held himself out as a doctor. Further, apparently the state disclosed most of his evidence to the grand jury, just not in the “context or narrative” that Trinh wanted.

R.S. v. Thompson in & for Cty. of Maricopa, 251 Ariz. 111, 485 P.3d 1068 (2021)

FACTUAL BACKGROUND

The Accused, Teddy Vanders, is charged with second degree murder for killing his girlfriend in a domestic dispute. During the 911 call, Mr. Vanders told the operator he shot his girlfriend because of exceedingly strange behavior and mentioned that he was aware of a period of time she had spent in a mental health care facility some years prior to the shooting. Mr. Vanders believed she may have received a diagnosis from that facility but was not sure.

Prior to trial, Mr. Vanders moved to compel that mental care facility, Magellan Hospital, to disclose their records of her treatment for an in-camera review by the court. The treatment occurred because the victim had threatened suicide and then attacked Mr. Vanders in her maligned state. The argument was that Mr. Vanders would need these records to argue justification for his actions and to effectively examine the witnesses. Specifically, Mr. Vanders intended “to show that he was afraid of M.S., that she had previously assaulted him on multiple occasions, and that a reasonable person in his position would have feared for his life.”

The trial court ruled, pursuant to State ex rel. Romley v. Superior Court (Roper), that Mr. Vanders’ due process rights required disclosure of those records for an in-camera review of those records to determine their relevancy to Mr. Vanders’ defense. The court found that Mr. Vanders’ due process right to present a complete defense trumped the physician-patient privilege of the victim to allow for the in-camera review.

The victim’s next of kin filed a special action challenging the ruling, which was granted by the Court of Appeals. The victims argued that the records were protected by both the Victim Bill of Rights (“VBR”) and the statutory physician- patient privilege, and the defense could not establish a superseding constitutional right to the records. The Court of Appeals agreed, saying the right to a complete defense was not a “general constitutional right to discovery.”

The Court of Appeals then went a step further and held that the standard requiring disclosure of those records—the reasonable possibility standard—was not adequate to protect the rights of victims and their privileged records. The Court of Appeals found that an Accused is only entitled to such records “when the defendant demonstrates (1) a substantial probability that the protected records contain information that is trustworthy and critical to an element of the charge or defense or (2) that their unavailability would result in a fundamentally unfair trial.” The Court of Appeals concluded Mr. Vanders had not met this new, higher standard, and granted relief to the victims.

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After this decision, another panel of that same appellate division declined to adopt the “substantial probability” standard. See Fox-Embrey v. Neal, 249 Ariz. 162, 171 ¶ 27 n.4 (App. 2020). The Fox-Embrey court used the reasonable possibility standard that had been applied by Roper and its progeny. Following the split, the Supreme Court took up R.S./S.E case.

ISSUES PRESENTED

What is the scope of the Accused’s due process right under the circumstances enunciated above?

What is the scope of the Victim’s rights under the circumstances enunciated above?

Whether the reasonable possibility standard is adequate to balance both Accused and Victim’s rights when those rights appear to be at odds.

Does the reasonable possibility standard allow for the court to review the victim’s medical records in camera to determine their relevancy to Mr. Vanders’ defense?

HOLDING

When a criminal defendant’s due process right to present a complete defense conflicts with a victim’s state constitutional or statutory rights governing privileged mental health records, the victim may be compelled to produce such documents for in-camera review if the defendant shows a reasonable possibility that the information sought includes evidence that would be material to the defense or necessary to cross-examine a witness.

DISCUSSION

ISSUE 1:

The Court begins it analysis by stating the Victim’s argument that the Accused does not have a constitutional right to the records is flatly incorrect. “Due process requires that a defendant receive a fundamentally fair trial, including a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.” (internal citationsand quotation marks omitted)); California v. Trombetta, 467 U.S. 479, 485 (1984) (“Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense.”); Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (noting that a defendant has a due process right to defend against the state’s accusations); see also Roper, 172 Ariz. at 236 (“[C]oncomitant with the Arizona Victim’s Bill of Rights, the defendant has a due process right, under the federal and Arizona constitutions, to present a defense.”); Connor, 215 Ariz. at 558 ¶ 12 (same).”

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The Court establishes, and Mr. Vanders concedes, that there is no general constitutional right to discovery. Roper also does not create a requirement for “wholesale production of the victim’s medical records to the defendant,” nor does Roper require disclosure of records in any case where the Accused may simply articulate a plausible reason the records may be exculpatory. However, when privileged material may “exclude essential evidence” from the Accused, preventing a complete defense, denial of a review of that material violates the Accused’s due process.

ISSUE 2:

The VBR and statutory privileges are powerful counterbalances to the rights of the Accused. However, federal constitutional rights trump state constitutional and statutory rights, including the victim right to refuse disclosure of medical records. When the Accused’s due process right to a complete defense conflicts directly with the VBR and victim statutory privileges, the due process right prevails. While the VBR and privileges are powerful, they do not create an absolute protection against disclosure. “A victim’s right to refuse discovery must yield when a defendant makes the requisite constitutional showing of need for the information.”

ISSUE 3:

The progeny of Roper, specifically in Connor, the Court of Appeals delineated a way to balance the competing rights of victims to refuse discovery and Accused rights to request it in the name of dure process – in camera review of privileged materials. The trial court must determine if there is a reasonable possibility that the requested information includes evidence that must be disclosed to comply with due process. Included in that reasonable possibility analysis is the articulation of a “sufficiently specific basis” for the review of the privileged materials.

The Court found the reasonable possibility standard was comprehensible and workable. The most important factor of this standard’s workability is that it does not require immediate disclosure to the Accused. Instead, it requires an in- camera review of those records by the court. Although an in-camera review of records is an encroachment into otherwise privileged information, it is minimal encroachment that balances the rights of the victim with the rights of the accused.

Alternatively, the substantial probability announced by the Court of Appeals in this case is found to be unworkable. This standard requires the defense effectively know the contents of the materials ahead of time, which is an unreasonable expectation. Further, this standard forecloses in camera review in nearly all cases. It effectively eliminates any balancing of the competing rights.

The reasonable possibility standard also bolsters and preserves the gatekeeper function of the trial court judges. Victims regularly request that these disclosure requests be denied, and the trial courts routinely deny them. Important to the Court is that this reasonable possibility standard is applied in a majority of other jurisdictions as well.

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In sum, the Court adopts the reasonable possibility standard for discovery requests of this nature. In ¶ 30: “We hold that the reasonable possibility standard applies to determine a defendant’s right to in-camera review of a victim’s privileged mental health records. A defendant must demonstrate a constitutional entitlement to such information in order to present a complete defense by first showing a reasonable possibility that the information sought includes evidence that would be material to the defense or necessary to cross examine a witness. The defendant’s request must be based on more than mere speculation and must include a sufficiently specific basis to deter fishing expeditions, prevent a wholesale production of the victim’s medical records, and adequately protect the parties’ competing interests.”

ISSUE 4:

Yes. The Court found there is a reasonable possibility that the Magellan records may shed light on the victim’s character for violence and corroborate the Accused’s version of events. Given that this case involved a justification defense that would entitle Mr. Vanders to offer proof of known prior incidents of violence, these records would shed light directly on that incident, including any diagnoses made in light of that prior incident.

Specifically, the Court stated: “Vanders has identified the relevant documents, the entity that possesses them, the specific date of the documents, and the information likely to exist in them. These are sufficient, document-specific facts that establish a reasonable possibility the requested information is material to Vanders’ justification defense— the core of his complete defense—and could cast doubt on his guilt.” ¶ 36.

IN SUMMARY:

The Supreme Court of Arizona vacates the Court of Appeals opinion and affirms the trial court’s ruling that there was a reasonable possibility that the requested records would corroborate Mr. Vanders’ version of events and to deny him this specific request would violate his constitutional right to a complete defense. Although the VBR and statutory privileges exist to protect victims from unwarranted fishing expeditions, the reasonable possibility standard allows the trial courts a workable standard to provide an in camera review to determine if the requested records would be necessary to disclose to comport with due process.

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STATE V. MILLER, --- P.3d ---- (2021) -

FACTUAL BACKGROUND

This opinion comes from the PCR proceedings following a capital trial. In a prior opinion, the Supreme Court of Arizona affirmed Mr. Miller’s convictions and death sentence. See State v. Miller, 234 Ariz. 31 (2013).

The relevant portion of Mr. Miller’s PCR petition regards the failure to object to the RAJI on the following mitigating factor at the penalty phase of Mr. Miller’s trial: one’s “capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to prosecution. See A.R.S. § 13-751(G)(1). Specifically, Mr. Miller insisted that “trial counsel were constitutionally ineffective for failing to object to the RAJI’s definition of “significantly impaired,” and appellate counsel was ineffective for failing to challenge the instruction on appeal.”

At the time of Mr. Miller’s trial, the RAJI for this mitigating factor defined “significantly impaired” as the individual “suffered from mental illness, personality disorder, character disorder, substance abuse, and/or alcohol abuse at or near the time of the offense, that prevented the defendant from appreciating the wrongfulness of the conduct or conforming his conduct to the requirements of the law.” Five years after Mr. Miller’s trial, and before his PCR claim was reviewed, this RAJI was revised to change “that prevented the defendant from appreciating” to “substantially reduced the defendant’s ability to appreciate.”

The PCR court agreed with Mr. Miller and said that the only reason for the change to the RAJI was the “recognition that the previous instruction’s language imposed the incorrect standard.” By failing to object at trial or on appeal, the PCR court found that Mr. Miller had been prejudiced and ordered a new penalty phase. The State requested a hearing to find if the “failure to object to the RAJI fell below prevailing professional norms” but was denied that hearing.

ISSUE(S) PRESENTED

Whether the failure to challenge an incorrect jury instruction widely used by the legal community at the time of trial and appeal constitutes deficient performance in violation of the Sixth Amendment right to effective assistance of counsel espoused by Strickland v. Washington, 466 U.S. 668, 687 (1984).

HOLDING

“Although lawyers can be constitutionally deficient for making errors commonly made by others, the record here does not reflect that the defendant’s lawyers were deficient by failing to challenge the jury instruction or that any deficiency prejudiced the defense.”

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DISCUSSION

To establish ineffective assistance of counsel that violates the Sixth Amendment, an Accused must make a two- prong demonstration of the deprivation: (1) that counsel’s representation was deficient and (2) that the deficiency prejudiced the Accused. Strickland, 466 U.S. at 687.

To establish deficiency, the Court must consider whether “representation fell below an objective standard of reasonableness” that is considered in light of the “practice and expectations of the legal community.”

The State’s main contention is that the PCR court did not make a specific finding that the representation fell below the standards of the profession. The Court here agrees that the record does not support that failure to object to a widely used instruction was deficient. The Court acknowledges that while making the same error that others in the profession routinely make may constitute ineffective assistance of counsel, there is no record to support that this failure to object to the RAJI was such an error. In light of the ongoing use of this RAJI by others in the profession at the time of his trial, the failure to object was understandable and thus reasonable to avoid deficient representation.

To prove prejudice, the Accused must show that the errors of counsel were “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. Effectively, to establish prejudice, the Accused must prove but-for counsel’s error, there is a reasonable probability that the result of the proceeding would have been different.

The PCR court found that the incorrect instruction prevented the jury from “properly considering” mental health evidence as a mitigator, thus prejudicing Mr. Miller. This, the Court says, is “incomplete and flawed” reasoning. Predominantly, there was no but-for analysis consideration on the failure to object to the RAJI reasonably resulting in a no-death verdict for Mr. Miller. A failure to independently weigh whether, but-for the failure to object, the aggravating circumstances could still outweigh the mitigating circumstances to result in a death sentence was not completed. Therefore, a finding of prejudice could not be made.

The Court then does its own independent analysis into the but-for question. The Court says the record does not support that but-for the failure to object that there was a reasonable probability of a different verdict. Primarily, the Court found the inclusion of seven other instructions regarding mental health problems suffered by Mr. Miller allowed the jury to properly consider the mitigation and cured any potential issue by including the problematic instruction.

IN SUMMARY:

Mr. Miller’s lawyers were not deficient in failing to object, and later failing to appeal, the use of a RAJI later found to include an unfair burden, primarily because the prevailing norm of the time was to use that exact RAJI. However, even if Mr. Miller’s lawyers were deficient, there was no prejudice. The inclusion of several mitigators regarding mental health meant the inclusion of the improper instruction could not demonstrate that but-for the failure to object, there was a reasonable probability that the verdict would have been different. The PCR court’s finding and judgment granting a new penalty phase is reversed.

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STATE V. PATEL, --- P.3d ---- (2021) -

FACTUAL BACKGROUND

In 2006, A.R.S. § 28-672 was amended to make it a misdemeanor offense to anyone who caused a death or serious physical injury from violating a traffic law.

Vivek Patel was charged and found guilty of causing a serious physical injury to a victim resulting from a failure to yield while turning left. The victim proved his injuries and expenses amounted to $161,191.99. Patel’s insurer covered $100,000, leaving the court to consider ordering the final $61,191.99 as restitution.

Patel’s attorney argued that A.R.S. § 28-672(G) capped the restitution amount available to the victim at $10,000. The State argued that this was unconstitutional on its face because it conflicted with the Victim’s Bill of Rights (“VBR”) that entitled victims to receive restitution. The municipal court agreed with the state and ordered the remaining $61,191.99 as restitution.

The Superior Court reversed the order. First, the court said that the VBR did not guarantee victims the right to “full” or “complete” restitution, so limiting the amount was a valid legislative decision. Second, the court said that while A.R.S. § 13-603(C) guaranteed victims the full amount of restitution, § 13-603 was a general statute and § 28-672 was a specific statute that controlled in this situation.

The Court of Appeals reversed the Superior Court’s decision and reinstated the restitution order of $61,191.99. The appellate court reasoned that common understanding and related jurisprudence of the VBR guaranteed victims the full amount of their economic loss. Further, the appellate court reasoned that such a limitation on restitution by the legislature does not “advance victim’s rights to restitution” and was not a permissible exercise under § 2.1(D) of the VBR.

ISSUE(S) PRESENTED

Whether A.R.S. § 28-672(G), which limits the amount of restitution that can be awarded to a victim for loss resulting from a violation of specified traffic offenses, is either (1) an unconstitutional limitation on the right to receive restitution or (2) a valid legislative enactment.

HOLDING

“The constitutional right to receive restitution guaranteed by the VBR is a right to receive the full amount of economic loss or injury caused by a defendant’s criminal conduct. Accordingly, § 28-672(G)’s limitation on a restitution award is unconstitutional and void.” Further, the legislative enactment is not permissible because it does not enhance the likelihood of victims receiving prompt restitution, violating § 2.1(D) of the VBR.

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DISCUSSION

The Court begins its analysis by recognizing that the VBR does not define “restitution.” Applying the “ordinary meaning” of the word “restitution,” the Court says that restitution in the VBR means restoring victims to “the position he [or she] occupied before a particular event.” This, according to the Court, clearly entitles victims to the full amount of economic loss as the result of being the victim of a crime.

The Court then recognizes the limitations on restitution collection. Section 2.1(A)(8) limits restitution to loss or injury caused by criminal conduct. A.R.S. § 13-105(16) defines economic loss ass “lost interest, lost earnings and other losses that would not have been incurred but for the offense. Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages.” Further, the Court’s jurisprudence holds that “the loss must be one that the victim would not have incurred but for the defendant’s criminal offense,” and “the criminal conduct must directly cause the economic loss.” State v. Wilkinson, 202 Ariz. 27, 29 ¶ 7 (2002). Finally, requested restitution must be established at a hearing to protect the due process rights of a convicted person.

Patel argues that the limitation enacted in § 28-672(G) is a valid exercise of the legislature’s authority to “define, implement, preserve and protect the rights guaranteed to victims by [the VBR].” The court shoots this down by saying nothing A.R.S. § 28-672(G) enhances the likelihood that victims will receive restitution. Instead, § 28-672(G) actively prevents victims from receiving restitution, and such a limitation is not a “valid exercise of authority granted by § 2.1(D).”

[Patel argues that several other statutes must fall as an excess of legislative authority if the court finds that § 28-672 (G) is in excess of legislative authority. The court considers each statute and disagrees that such a “Hobson’s choice” exists. ¶¶ 22-26.]

[The Court concludes its analysis by conducting a severability discussion in light § 28-672(G) unconstitutional nature. ¶¶ 27-38.]

IN SUMMARY:

“Section 28-672(G) is an unconstitutional limitation on the right to receive prompt restitution as guaranteed by the VBR. We affirm the court of appeals opinion, reverse the superior court’s order, vacate any resulting restitution judgment, and reinstate the municipal court’s restitution order in the amount of $61,191.99.”

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GARCIA V. HON. BUTLER/STATE, --- P.3d ---- (2021) -

FACTUAL BACKGROUND

Mr. Garcia was charged with one count of sexual conduct with a minor. After being charged, Mr. Garcia was placed in Rule 11 to have his competency examined. He was found not competent and not restorable (“NCNR”). The State requested that Mr. Garcia be subjected to an SVP screening pursuant to A.R.S. § 13-4518(A), which allows for such a request when (1) an individual is found NCNR and (2) they’ve been charged with a qualifying sexually violent offense.

Mr. Garcia argued that neither of the doctors diagnosed Mr. Garcia with a qualifying mental disorder required by A.R.S. § 36-3701(7) to justify the screening, and the court should therefore deny the State’s request.

After a hearing, the trial court found that the State was entitled to the hearing because it was undisputed that Mr. Garcia was NCNR and was charged with an SVP qualifying offense. The court said that because the State made a prima facie showing that the two requirements under § 13-4518(A) were met, the State was entitled to the hearing.

ISSUE(S) PRESENTED

Whether A.R.S. § 13-4518(B) gives trial courts discretion to deny the State’s request for an SVP screening under subsection A of that statute.

Whether the trial court abused its discretion by failing to use its discretion and deny the requested screening in this case.

If trial courts have discretion to deny the requested hearing:

What standard must the State meet to demonstrate an SVP screening is appropriate?

What must the trial court consider when deciding whether the State has met their burden of “reasonable grounds”?

HOLDING

A.R.S. § 13-4518(B) does give trial courts discretion to deny the State’s request for an SVP screening.

The trial court in this case did abuse its discretion by failing to exercise that discretion due to the lack of justification for such a screening.

The State must show there are “reasonable grounds” that an SVP screening is appropriate. The trial court should consider “[i]nformation obtained from the Rule 11 proceeding, the nature of the charged offense, and the facts and circumstances surrounding the case” when making its determination into whether the State has met that burden.

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DISCUSSION

Issue 1:

A.R.S. § 13-4518(A) allows the State to request an SVP screening when (1) an individual in Rule 11 is found NCNR and (2) if that person has been charged with or convicted of or found guilty except insane for a sexually violent offense defined in A.R.S. § 36-3701. If those two conditions are met, the State is able but not required to request an SVP screening of the accused.

The next subsection, A.R.S. § 13-4518(B), begins with this phrase: “If the court orders a screening to determine if the defendant may be a sexually violent person. . . .” The important and controlling word here is the very first one: “If.” In an exercise in statutory interpretation, the Court acknowledges that subsection A uses discretion-specific words like “may” and “request.” Both of these words indicate that the State can, but is not required to, request an SVP screening when the necessary conditions are met.

The word “if” in subsection B controls the rest of the statute. The word “if” necessarily implies a trial court could deny the request, under which circumstances the rest of subsection B no longer applies. Given the discretionary-specific language in subsection A, it is clear that if the legislature intended to make the screening mandatory upon the demonstration of the two required conditions, they would have used words that removed discretion from the court’s consideration.

Further, and importantly, allowing the State to have a discretionary call when requesting a screening but removing discretion from the trial court in ordering such a hearing would violate due process. An accused is entitled to a neutral arbitrator, a manifestation of constitutional due process. If the court is denied discretion in this instance, it would no longer be a neutral arbitrator but simply an arm of the State, a violation of due process.

Issue 2:

The court remanded this case because the record demonstrated the screening was ordered only because the trial court did not believe it had jurisdiction to deny the State’s request once the two conditions under subsection A were established. Because the court erroneously believed it did not have discretion, a failure to exercise any discretion at all is “legal error” and an abuse of discretion.

Issue 3:

Although the statute mentions no standard to apply when considering whether an SVP screening is appropriate, the court settles on whether the State has “reasonable grounds” to request the screening. Although most of us have never heard of this standard, the Supreme Court insists it is not novel, as it applied in the specific instance of a preliminary examination of an accused’s competency to stand trial under Rule 11.2.

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“[W]hen determining whether to order an SVP screening, the trial court must evaluate the request as it would any other motion, relying on the evidence and arguments proffered by the parties and any other information before it. Information obtained from the Rule 11 proceeding, the nature of the charged offense, and the facts and circumstances surrounding the case would be instructive for the court when determining whether to order a screening. This list of factors is not exhaustive, however, and a court should consider all relevant evidence when it exercises its discretion under § 13-4518(B) in determining whether to order a defendant to undergo an SVP screening.”

IN SUMMARY:

A trial court has discretion to deny the State’s request for an SVP screening, even if the State can demonstrate both conditions apply to enable them to make such a request. The court must decide if there are “reasonable grounds” to grant the request. This determination requires a consideration of the circumstances of the case, the information provided from the Rule 11 proceedings, and the nature of the charged offenses.

PRACTICAL POINTER:

If there is a strong chance that your client may be found NCNR and is charged with or has been previously convicted of a sexually violent offense (see ARS. 36-3701), then prepare to argue why there are no “reasonable grounds for the SVP screening” argument. Possible avenues to argue “no reasonable grounds” are scoring the Static 99R to demonstrate low risk to reoffend, hiring an expert to “consult” with us and the State to prevent the SVP screening from happening, and hiring a testifying expert and asking for an evidentiary hearing about the SVP screening request.

STATE V. DUFFY, --- P.3d ---- (2021) -

FACTUAL BACKGROUND

Duffy was driving erratically in an SUV, while Matias, the co-defendant, was riding shotgun. Police pull them over for erratic driving and see bundles of marijuana in the backseat, prompting arrests of both people. Matias first confesses to picking up the marijuana for a transaction, and that Duffy had no idea about it. Duffy said the same thing and that Matias had conversations about it with others in Spanish, a language Duffy did not understand. Matias retracted her confession later.

At the arraignment, the Prosecutor expressed concern of one counsel representing both defendants due to the “obvious competing defenses.” This concern was also espoused at a later hearing as well. Defense counsel assured the court there was an agreement to a common defense for both parties and that they signed a waiver of conflict. There were no more inquiries into the issue of conflict.

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ISSUE(S) PRESENTED

Did the trial court adequately confirm the defendant waived his right to conflict-free counsel?

HOLDING

When a trial court is advised of a potential conflict arising from one attorney representing multiple co-defendants, it must conduct an independent inquiry to confirm that the defendant’s Sixth Amendment right to conflict-free counsel is waived knowingly and voluntarily.

A defense counsel’s assurances that the defenses are common and conflict is waived is not enough to satisfy this waiver.

DISCUSSION

The Sixth Amendment guarantees an accused the right to effective counsel, which necessarily dictates that this counsel is conflict-free. The question of conflict for one attorney representing multiple co-defendants comes to one point: we trust the defense attorney to be ethical.

However, not all defense attorneys are ethical. “To ‘establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.’” One attorney representing multiple co-defendants is not presumed to be a conflict. In light of ethical obligations to their clients, a defense attorney is in the best position to determine if a conflict may arise from representing multiple co-defendants. Because conflict is not presumed, a trial court is not expected to inquire into potential conflicts if the defense attorney has not raised it as an issue.

However, even in light of a conflict, the accused may waive their right to conflict-free counsel under the Sixth Amendment. However, when the accused makes such a waiver, it is incumbent upon the trial court to ensure the waiver is knowing and voluntary. Further, when a party raises conflict as a potential issue, the court must conduct an independent inquiry into the accused’s understanding of their waiver. A failure to make any inquiry into Duffy’s understanding of his waiver in this case even after the Prosecutor raised it as a potential issue failed to meet the low expectations created by the Sixth Amendment.

The independent inquiry would creates a prophylaxis to secure the waiver appropriately. “That inquiry requires the court to ascertain the nature of the possible conflict, whether the conflict would prevent the assertion of credible independent defenses, and whether the defendant was aware of the conflict risk and its ramifications and nonetheless knowingly waived the Sixth Amendment right to conflict-free counsel.”

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Specifically, the court gives a second version of the prophylaxis through a recommended colloquy. “In the colloquy, the court should advise defendants of the right to conflict-free counsel, make defendants aware of the identified conflict, explain possible ramifications of the conflict, advise defendants of the right to confer about the conflict with different counsel, and ask if defendants understand the risk and wish to proceed with counsel regardless.”

Ultimately, the trial court failed to look into Duffy’s waiver any further than the Defense counsel’s assurances. The Court said this affected Duffy’s trial defense, his ability to seek a plea agreement, or his ability to testify against Matias in exchange for leniency from the State. In light of all of these possibilities, failure to secure an appropriate waiver of conflict-free counsel required vacating Duffy’s conviction and remanding the case for a new trial.

IN SUMMARY:

When dealing with one attorney representing multiple co-defendants and the issue of potential conflict is brought up by any party, the trial court is required to give a colloquy to the accused who asserts a potential waiver of their right to conflict-free counsel. Assurances from defense counsel are not enough. Failure to conduct such a colloquy by the trial court would result in reversible error for a violation of the accused’s Sixth Amendment right to conflict-free counsel.

EDWARDS V. VANNOY, 593 U.S. ___ (2021) - https://www.supremecourt.gov/opinions/20pdf/19-5807_new2_jhek.pdf.

Author: Kavanaugh

Joined by: Roberts, Thomas, Alito, Gorsuch, & Barrett

Concurrence:

Thomas, joined by Gorsuch

Gorsuch, joined by Thomas

Dissent: Kagan, joined by Breyer & Sotomayor

Background Cases

Ramos v. Louisiana, 590 U.S. ___ (2020): A state jury must be unanimous to convict a criminal defendant of a serious offense.

Teague v. Lane, 489 U.S. 288 (1989): A new procedural rule will apply retroactively on federal collateral review only if the new rule constitutes a “watershed” rule of criminal procedure.

IMPORTANT QUOTATION: “To summarize the Court’s retroactivity principles: New substantive rules alter the range of conduct or the class of persons that the law punishes. Those new substantive rules apply to cases pending in trial courts and on direct review, and they also apply retroactively on federal collateral review. New procedural rules alter only the manner of determining the defendant’s culpability. Those new procedural rules apply to cases pending in trial courts and on direct review. But new procedural rules do no apply retroactively on federal collateral review. Ramos announced a new rule of criminal procedure. It does not apply retroactively on federal collateral review.” (internal quotations & citations omitted).

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Issue: Does the Ramos jury-unanimity rule apply retroactively on federal collateral review?

Holding: No!

Factual Summary: In 2007, a Louisiana jury convicted Edwards of multiple offenses. For some of the offenses, only 10 of 12 jurors returned a guilty verdict; for other offenses; only 11 of 12 jurors returned a guilty verdict. The conviction was upheld on direct review, and Edwards later filed a federal habeas corpus petition. After the Circuit Court denied his certificate of appealability and Edwards’s petition for writ of certiorari was pending, SCOTUS released the Ramos decision.

Reasoning: A new procedural rule applies to cases on direct review, even if the defendant’s case has already concluded. But a new procedural rule generally does not apply to cases on federal collateral review. Without that limitation, the principle of finality would be seriously undermined, just like it would be here, if Ramos was applied retroactively. Decades of convictions would be overturned.

The only exception to this principle is if the new rule constitutes a “watershed” procedural rule; the rule would then apply retroactively. The watershed exception is very narrow and only applies when the rule alters “our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” But in the 32 years since Teague, SCOTUS has never found a procedural rule that satisfied this limited exception. And here is no different.

Editorialized ending: And to be honest, there’s not going to be any procedural rule that will ever meet the “watershed” definition under Teague so litigants should just stop trying.

Concurrence (Gorsuch): We could have resolved this case just by applying AEDPA.

Concurrence (Thomas): The writ of habeas corpus was getting out of hand and now it’s been appropriately limited by getting rid of Teague.

Dissent: If anything fits the definition of a “watershed” procedural rule it’s the jury unanimity requirement.

(See screenshot from Kagan’s dissent).

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JONES V. MISSISSIPPI, 593 U.S. ___ (2021) - https://www.supremecourt.gov/opinions/20pdf/18-1259_8njq.pdf Author: Kavanaugh

Joined by: Roberts, Gorsuch, & Barrett

Concurrence in the Judgment: Thomas

Dissent: Sotomayor (author), Breyer, & Kagan

Background Cases

Miller v. Alabama, 567 U.S. 460 (2012): A defendant who commits homicide when he or she is under the age of 18 may only be sentenced to life without parole (“LWOP”) is the sentence is not mandatory and the sentencer has discretion to impose a lesser punishment.

Montgomery v. Louisiana, 577 U.S. 190 (2016): Miller applies retroactively on collateral review.

Issue: When a defendant committed a homicide under the age of 18, do Miller and Montgomery require the sentencer to make a separate factual finding of permanently incorrigibility before sentencing the defendant to LWOP?

Holding: No, so long as the sentencing system allows for discretionary—and not mandatory—LWOP, the system is both constitutionally necessary and sufficient.

Factual Summary: Brett Jones was convicted of killing his grandfather. On the date of the offense, he was 15 years old. Under Mississippi law at the time, the conviction carried a mandatory LWOP sentence. The trial judge sentenced him to LWOP.

After the U.S. Supreme Court decided Miller, the Mississippi Supreme Court concluded that the case applied retroactively and ordered a new sentencing hearing for Jones. At the sentencing hearing, the trial judge acknowledged that he had discretion under Miller to impose a sentence of less than LWOP, but after considering factors “relevant to the child’s culpability,” he still determined that LWOP was the appropriate sentence.

Mr. Jones eventually petitioned for certiorari, arguing that a sentencer who imposes LWOP on a defendant who committed homicide before the age of 18 must make some factual finding of permanent incorrigibility. SCOTUS granted certiorari.

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Reasoning: In Montgomery, the Court unequivocally stated that Miller does not impose a formal factfinding requirement. Instead, Miller only requires that the sentencing judge be able to consider the “mitigating qualities of youth” before sentencing a defendant who committed homicide when he or she was under the age of 18. If the sentencing judges makes that consideration—even if the judge did not make a specific finding that the defendant is incorrigible—imposing a discretionary LWOP sentence is constitutionally permissible.

Concurrence: Instead of adopting a strained reading of Montgomery to ultimately come to the correct conclusion that the Eighth Amendment does not require a finding that a minor be permanently incorrigible as a prerequisite to a LWOP sentence, the majority should instead just outright say that Montgomery was a wrong decision. Miller was procedural and should not have been applied retroactively.

Dissent: The majority guts Miller and Montgomery, which have explicit holdings that a sentencing judge must find that a defendant is permanently incorrigible before sentencing him or her to LWOP for committing a homicide before the age of 18. The discretion to impose a non-LWOP sentence is necessary but far from sufficient, as the sentencing judge must actually make the finding that the defendant in question is one of those rare persons for whom a LWOP sentence is constitutionally permissible.

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LANGE V. CALIFORNIA, 594 U.S. ____ (2021) -

Author: Kagan

Joined by: Breyer, Sotomayor, Gorsuch, Kavanaugh, Barrett, & Thomas (except as to Part II-A)

Concurrence: Kavanaugh

Concurrence: Thomas, joined by Kavanaugh (only as to Part II)

Concurring in the Judgment: Roberts, joined by Alito

KEY QUOTE: “The flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency. On many occasions, the officer will have a good reason to enter—to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so—even though the misdemeanant fled.”

Issue: Does pursuit of a fleeing misdemeanor suspect always justify a warrantless entry into a home?

Holding: No!

Factual Summary: Arthur Lange drove past a highway patrol officer while he was listening to loud music and repeatedly honking his horn. The officer began following Lange and eventually activated his emergency lights. At the time, Lange was 100 feet from his room. Instead of stopping, Lange parked in his attached garage. The officer followed and began questioning Lange. The officer observed signs of intoxication and had Lange perform a field sobriety test, on which he performed poorly. Last blood tests shows that Lange’s BAC was 3x the legal limit.

The State charged Lange with DUI and he moved to suppress based on the officer’s warrantless entry into his garage.

Reasoning: One exception to the warrant requirement is exigent circumstances. It applies when law enforcement has a compelling need to act quickly and cannot feasibly obtain a warrant in time. The exigent circumstances exception is generally applied on a case-by-case basis. Similarly here, the exigent circumstances exceptions must be applied on a case-by-case basis to determine whether a fleeing misdemeanor suspect justifies a warrantless entry into a home.

This outcome is justified based on Court precedent and common-law practice. The home has always been the “first among equals” under the Fourth Amendment. Further, misdemeanors encompass a large swath of criminal behavior, many of it benign, such as littering on a public beach or drinking alcohol in a railroad car. To have a categorical exception to the warrant requirement allowing an officer enter the most sacred place—the home—cannot be justified.

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United States v. Cooley, 593 U.S. ____ (2021) -

Author: Breyer

Joined by: Unanimous court

Concurrence: Alito

Issue: Does a tribal police officer have the authority to temporarily detain and search a non-tribal member on a public right-of-way that runs through a reservation?

Holding: Yes!

Factual Summary: Officer James Saylor of the Crow Police Department was driving on a federal highway, a public right-of-way on the Crow Reservation in Montana. Ofc. Saylor saw a truck parked on the side of the highway and believed the occupants might need assistance. He spoke with the driver, Joshua Cooley, and noticed that Mr. Cooley had watery, bloodshot eyes and “appeared to be non-native.” He also noticed two rifles on the front seat. Ofc. Saylor ordered Cooley out of the truck and conducted a pat down. He called tribal and county officers for backup. While waiting for them to arrive, he went back to the truck and saw a glass pipe and methamphetamine.

A federal grand jury indicted Cooley for weapons and drug offenses. He moved to suppress the drug evidence seized, arguing that Ofc. Saylor, as a Crow Tribe police officer, lacked the authority to investigate “nonapparent” violations of state or federal law by a non-tribal member on a public right-of-way crossing the reservation.

Reasoning: Tribes are “distinct, independent political communities” exercising sovereign authority. Worcester v. Georgia, 6 Pet. 515, 559 (1832). But, tribes lacks inherent sovereign power to exercise criminal jurisdiction over non- tribal members. Because no treaty or statute has explicitly divested tribes of the policing authority at issue, determining whether a tribe has retained inherent sovereign authority to exercise this power is guided by precedent. The main precedent is Montana v. United States, 450 U.S. 544 (1981), where we held that generally, the inherent sovereign powers of a tribe do not extend to non-members.

However, two exception to this general proposition exist, and one applies here perfectly. The exception is that a tribe may exercise authority over a non-tribal member when the “health and welfare of the tribe” is at issue, such as it was here. To deny the tribe this authority would leave the tribe unprotected from ongoing threats.

Concurrence: “I join the opinion of the Court on the understanding that it holds no more than the following: On a public right-of-way that traverses an Indian reservation and is primarily patrolled by tribal police, a tribal police officer has the authority to: Stop a non-Indian motorist if the officer has reasonable suspicion that the motorist may violate or has violated federal or state law; Conduct a search to the extent necessary to protect himself or others; and If the tribal officer has probable cause, detain the motorist for the period of time reasonably necessary for a non-tribal officer to arrive on the scene.”

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STATE OF ARIZONA v. EDGAR FRISTOE, 2 CA-CR 2019-0064 - Opinion

We have no expectation of privacy for anything we do online. Google is not a state actor when it reports child porn despite the state-imposed fines if it fails to report. Maybe not quite that broad but a better lawyer than I will have to find authority other than the 4th Amendment or the state constitution’s Private Affairs clause.

¶1 Edgar Fristoe appeals from his convictions and sentences for ten counts of sexual exploitation of a minor under fifteen years of age, arguing Google LLC (Google) and the National Center for Missing and Exploited Children (NCMEC) violated his federal and state constitutional rights by searching his “Google+ Photos” account, opening images of child pornography uploaded to his account, and sharing these images with law enforcement. He contends the trial court erred in failing to suppress evidence obtained as a result of that warrantless acquisition and use of these images. Because we conclude the private search doctrine applies, we affirm Fristoe’s convictions and sentences.

Google discovered nineteen images of child pornography in Fristoe’s Google+ Photos account. Google reported their findings to NCMEC and included the subscriber information. NCMEC reviewed the reports, including all the images, and subsequently forwarded the information to the Phoenix Police Department. Tucson Police Department detective used that information, among other things, to obtain a search warrant for Fristoe’s home and cell phone.

¶6 Before trial, Fristoe filed a motion to suppress and an amended motion to suppress arguing the trial court should “suppress all evidence based on a warrantless search by government actor Google and all following evidence being fruit of the poisonous tree.” Fristoe conceded that Google was a private entity but argued that it had acted as a “limited purpose government agent” when it searched through his Google+ Photos account and reported the child pornography, requiring a warrant. Specifically, Fristoe argued Google was acting as a government agent because it (1) faced substantial monetary losses and fines if it did not report child pornography, (2) was motivated to cooperate with law enforcement, and (3) was “inexplicably intertwined [with the federal government] in their pursuit of removal of child pornography from Google’s servers.”

The state contended that Google was not acting as a government agent because (1) it faced fines only if it failed to report child pornography, not if it failed to search for it and (2) it was motivated to search for this illicit material for its private interests.

¶11 Fristoe argues that Google violated his rights under the Fourth Amendment because no warrant exception applied and it opened and shared the images in his Google+ Photos account with NCMEC, and indirectly with law enforcement, without a warrant. He contends that although Google is a private organization, it should be considered a government agent in this context in light of the government’s knowledge “of and acquiesce[nce] in Google’s intrusion into user’s private files” and Google’s intent to assist law enforcement.

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¶13 To determine whether a private party acted as a government agent in an illegal search, courts consider “(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.”

¶14 Fristoe has not met his burden of showing Google was acting as a government agent. He argues the federal government acquiesced and “took advantage” of the fact that third parties conduct searches of private files by creating 18 U.S.C. § 2258A, a federal statute that requires third parties, such as Google, to report child pornography to NCMEC. Although § 2258A(a) requires Google to report child pornography if it finds such illicit material, § 2258A(f) expressly does not require companies like Google to search accounts for this material. For this reason, several courts have agreed that § 2258A’s reporting requirement does not, by itself, convert a provider, like Google, into a government agent.

¶15 Fristoe has not shown that Google’s search was motivated to assist law enforcement rather than to protect its private business interests. Cathy McGoff—the senior manager of Law Enforcement and Information Security at Google, stated that Google “has a strong business interest” in ensuring its products are “free of illegal content” and monitors its platform to protect its public image and to retain and attract customers. She also stated that Google reports child pornography images to NCMEC because it is required to do so by federal statute. Fristoe argues that because this reporting requirement leads to a steep fine if Google fails to comply, see § 2258A(e), this also shows that Google’s motivation is to assist law enforcement. But even if Google is motivated to assist law enforcement to some extent, several courts have rejected this argument and found that this mutuality of purpose does not make a private party a state actor.

¶18 Fristoe argues the private search doctrine should not apply under Arizona’s Private Affairs Clause because it does not apply under Washington’s Private Affairs Clause. He contends that because the two clauses are identical, and neither include the word “reasonable,” the analysis should be the same. Compare Ariz. Const. art. II, § 8 with Wash. Const. art. I, § 7. Our supreme court has been reluctant to “expand the Private Affairs Clause’s protections beyond the Fourth Amendment’s reach, except in cases involving warrantless home entries.” As a result, we conclude that the private search doctrine applies under Arizona’s Private Affairs Clause.

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STATE OF ARIZONA v. GARY E. STARKS, 2 CA-CR 2019-0288 - Opinion

Starks was indicted on five sex offenses against the daughter of a friend. The first jury could not reach a unanimous verdict and mistrial resulted. The second jury convicted on two counts, child molest and indecent exposure. The court vacates and remands because cold expert Wendy Dutton’s testimony was improper profiling evidence and reversible error. The court gives us material to work with but it seems like the error here would be avoided by a more carefully prepared direct examination. The bottom line is the testimony has to focus on and explain victim behaviors and perceptions and may not simply be an abuser profile.

¶6 Starks has waived any error in Dutton’s testimony re quantifying the likelihood of false accusation because 1) it wasn’t specified in his motion in limine, and 2) he did not contemporaneously object. Because he hasn’t developed any fundamental error arguments on appeal, all error is waived.

¶7 The motion in limine expressly sought to preclude Dutton, from testifying about “the process of victimization” and “the behaviors of perpetrators” to “create a profile of a perpetrator,” which could then be used to “implicitly show that [Starks] has the character of a child abuse perpetrator.”

¶11 A cold expert may testify about “general patterns of behavior” of child sexual abuse victims. Thus, testimony by a cold expert about “how children perceive sexual abuse,” “behaviors involving disclosure of abuse,” and “circumstances in which children may make false allegations” is generally admissible, subject to the trial court’s discretion to exclude it under Rules 702 and 403. However, our supreme court has concluded that “[t]he state may not offer ‘profile’ evidence as substantive proof of the defendant’s guilt.” “Profile evidence tends to show that a defendant possesses one or more of an informal compilation of characteristics or an abstract of characteristics typically displayed by persons engaged in a particular kind of activity.”

In ¶12 through 21, the court discusses in detail the difference between improper profile testimony and testimony that permissibly refers to offender characteristics to explain victim behavior.

¶16 In this case, the state elicited the kind of profile testimony that was deemed inadmissible by the court in Ketchner. Dutton’s response to the prosecutor’s question about perpetrator strategies described a profile of a sexual abuser: someone who enters a family, takes over discipline of the children, and treats the existing parent and the children harshly. In her response, Dutton did not attempt to explain any victim behavior, unlike the testimony found to be proper in Haskie; she simply listed things that sexual abusers commonly do to establish a relationship with the victim to enable the sexual abuse. Indeed, the question did not call for Dutton to relate the strategies of perpetrators to any conduct of victims that might have needed to be explained. We see no purpose for the question or the information it elicited other than to improperly invite the jury to conclude that Starks was guilty because his actions matched those that the expert reported to be common to perpetrators.

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¶22 through 36 The majority discusses- and disagrees with- the dissent. I’m editorializing but, to me, the dissenting argument seems to be that we’ve allowed this type of testimony before and it’s all essentially the same. Also ¶53, “Dutton’s testimony allowed the state to give rational explanations for the questions Starks would raise as to the victim’s credibility and to dispel reasonable doubt.” It’s not entirely clear but is the dissent saying her testimony was ok because it explained what the state anticipated that Starks would say in his defense?

¶29 Perhaps because he does not detect any profile testimony in the first place, our colleague’s analysis effectively ends once he concludes the challenged testimony was relevant to support or bolster the victim’s credibility. To be sure, profile testimony is inadmissible if it is “simply not relevant to explaining the victim’s behavior.” But it does not follow that profile testimony is admissible merely because it is relevant. We observe that a profile matching what a victim says a defendant has done will always provide some support to the victim’s testimony and thus is relevant in that sense. The relevance in that circumstance, however, generally derives from the inference that the defendant has done “what others are doing.” Profile evidence is generally inadmissible when its relevance arises only from this inference.

Interesting footnote re “unfair prejudice”: 3 Even were we to accept our colleague’s articulations of proper purpose for the challenged testimony, it would be admissible only if its probative value were not substantially outweighed by the danger of unfair prejudice. Because this case hinged on the testimony of a single victim, there was a heightened risk that jurors could have been unduly swayed by learning that Starks’s conduct matched that commonly found in offenders.

¶39 Although the state elicited many of Starks’s characteristics that matched the profile, the state asserts that Starks elicited most of the testimony about his disciplinary role. The state suggests that Starks thereby invited any error. The discipline evidence elicited by Starks would not have been unfairly prejudicial to him but for the improper profile the state had elicited. Thus, unlike Anderson, Moody, and Lawrence, the state was the party that “inject[ed] error in the record” in this case. The invited error doctrine does not apply when the defendant “tr[ies] to minimize the damage” from error created by the state.

¶41 In reviewing for harmless error, we examine whether properly admitted evidence of guilt was overwhelming. The case against Starks rested entirely on the victim’s testimony. We cannot say evidence that is entirely testimonial, where the defendant has denied the charge, and credibility is plainly at issue, constitutes overwhelming evidence of guilt. The court also considered the previous hung jury in its decision that the evidence of guilt was not overwhelming.

¶46 The trial court allowed the dates on the indictment to be amended to reflect the dates of offense presented at trial. Apparently the dates in the indictment vs trial differed by more than a year. However, because the date change did not alter “the nature of the offense” and Starks has not meaningfully shown prejudice, he has not demonstrated that the trial court abused its discretion.

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STATE OF ARIZONA v. JARRAD TREVOR BARNES, 2 CA-CR 2019-0295 - Opinion

The court finds fundamental, prejudicial error in the endangerment jury instruction and reverses for a new trial on that count.

Barnes was driving erratically and fast. He made a fast left turn, over-corrected, jumped the median, and hit a Prius head-on. An oncoming truck did not have time to stop and hit both the Prius and Barnes’ car. The Prius driver died, the truck driver had minor injuries. Barnes had marijuana and a pipe in his car and THC and Clonazepam in his system.

¶5 Barnes was indicted on charges of manslaughter, criminal damage, endangerment, driving under the influence (DUI), driving with an illegal drug or its metabolite, possession of marijuana, and possession of drug paraphernalia. The paraphernalia was dismissed before trial. The jury acquitted Barnes of manslaughter but found him guilty of the lesser-included offense of negligent homicide. The jury also acquitted him of the DUI charge, but found him guilty of all other charges. The jury found that the endangerment was of a dangerous nature, and a subsequent jury found the negligent homicide was not of a dangerous nature.

¶8 Here, count three indicted Barnes for “recklessly endanger[ing] E.F. with a substantial risk of imminent death.” However the jury was instructed by the court, twice orally and twice in writing, that the crime of endangerment required proof that Barnes “disregarded a substantial risk that his conduct would cause imminent death or physical injury, and . . . did in fact create a substantial risk of imminent death or physical injury.” (Emphasis added.) The jury found Barnes guilty of endangerment and the court designated the offense a class-six felony. Barnes did not object to the instruction at trial.

¶9 This court has repeatedly held similar iterations of this instruction to be fundamental error. The instruction here was erroneous because it permitted the jury to make a finding of guilt on a charge of felony endangerment on the basis of “physical injury” which is reserved for misdemeanor endangerment.

The state argued that the error was not fundamental because there was no dispute as to the “level of endangerment” EF was placed in and the error was cured by the indictment, the verdict form, and the state’s closing argument. The court disagreed. Because Barnes had argued that he had not acted recklessly and that he should be found not guilty of the endangerment, he did not need to “specifically contest the level of endangerment” to put it at issue. The court also acknowledged that in some cases an indictment, a verdict form, or counsels’ arguments can cure an erroneous jury instruction. That was not the case here:

¶20 The verdict form did not clearly “specify[] the allegations satisfying each count,” the prosecutor’s arguments did not clearly explain how Barnes put E.F. at substantial and unjustifiable risk of imminent death rather than solely physical injury; the trial court instructed on both imminent death and physical injury; the court instructed the jury to “consider all of [the] instructions,” and to “not pick out one instruction or part of one and disregard the others”; and, as explained below, the nature of the evidence supports both a finding of felony or misdemeanor endangerment.

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The courts notes that an examination of prejudice is necessarily very fact-intensive.

¶27 While the evidence here was sufficient to support a conviction for felony endangerment, that is not the test for prejudice. “Nor is the test whether this court thinks another jury, properly instructed, will probably find [Barnes] guilty again. Rather, the test is whether a reasonable jury, properly instructed, could have found [Barnes] not guilty of [felony endangerment].” Because of the secondary nature of the collision, because E.F. was driving a larger vehicle, and because E.F. was not seriously injured, we conclude that a reasonable jury here could have found that Barnes did not create an “actual substantial risk of imminent death” to E.F.

There’s also a seven-page dissent.

STATE OF ARIZONA v. JOHNNY ANGEL GOMEZ, 2 CA-CR 2020-0127 - Opinion

One issue is addressed in this opinion and one issue is avoided:

Are 13-1204 (A)(2) (agg assault with a dangerous instrument) and (A)(3) (agg assault resulting in temporary but permanent disfigurement) two separate offenses or alternative means of committing one aggravated assault? They are separate offenses and thus separate convictions (with concurrent sentences for each victim) are appropriate.

Was it an unreasonable search, while in the hospital’s trauma bay, for the officer to handcuff Gomez to his bed and listen to everything he reported to medical staff? Doesn’t matter and court doesn’t address because any error was harmless. There was so much other evidence that Gomez had used meth that his own statements were apparently unimportant.

FACTS:

Gomez barreled through an intersection and t-boned another car. Gomez had three passengers; one died and the other two had significantly injuries. There were five people in the other car; three had significant injuries, one had minor injuries, and one was uninjured. He was sentenced to a total of 76.5 years in prison. Among his convictions were 5x agg assault with a dangerous instrument (1402(A)(2)) and 5x agg assault with temporary but permanent disfigurement (1402(A)(3)); one of each offense for five separate victims. Sentences for each conviction were concurrent as to each individual victim but consecutive as to each of the five victims.

Double jeopardy

¶25 We conclude that aggravated assault using a deadly weapon or dangerous instrument and aggravated assault causing temporary but substantial disfigurement are distinct and separate offenses . Accordingly, Gomez’s dual convictions and concurrent sentences for the aggravated assault of each of his five significantly injured victims under subsections (A)(2) and (A)(3) of the aggravated assault statute do not violate double jeopardy principles.

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The court noted that Division One reached a different conclusion in State v. Pena, 209 Ariz. 503, but that Division Two has “consistently” treated them as separate crimes. The court relied on the following factors in explaining why (A)(2) and (3) are separate crimes:

Each subsection requires proof of a fact that the other does not, D could commit one offense without necessarily committing the other.

They prohibit different acts and seek to prevent different harms.

The subsections are classified as different levels of felony and carry different punishments. A2 is a 3F and A3 is a 4F.

Motion to suppress

¶28 We need not address Gomez’s constitutional privacy arguments because any error was harmless. Forensic testing of Gomez’s blood affirmatively established the information contained in the statement he argues should have been suppressed: that he had ingested methamphetamine before the collision. The results of the blood test also established that he had been impaired at the time of the collision. Compared to Gomez’s disoriented statements in the hospital bed, this constituted far stronger evidence that Gomez had driven impaired and, at a minimum, recklessly—both elements of the charged offenses.

Editorial Comment:

This seems like they’re addressing the issues in the wrong order. They should decide whether something is actually error before they decide if it’s harmless. Also his own statement about using meth is way more damaging than just having meth in his system. “Way more” should be adopted as a new standard of proof.

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STATE OF ARIZONA v. LUIS ARMANDO VARGAS, 2 CA-CR 2016-0324 - Opinion

So this opinion first came out in mid-March. The court reissued it and starting at paragraph 81 (p.33) of the new opinion, they’ve added a discussion of recent SCOAZ opinion State v. Murray, 250 Ariz. 543 (2021). The Supreme Court’s holding in Murray was that the prosecutor’s material misstatement of the reasonable-doubt standard was both fundamental and prejudicial error because it went to the foundation of the case and deprived the defendants of an essential right.

Division Two concludes here that Murray had no bearing to Mr. Vargas’ case:

¶83 The trial court’s instruction that lawyers’ statements “[are] not evidence, but . . . may help you understand the law and the evidence” in Murray did not cure the prosecutor’s misstatement of the law. But the Murray analysis does not extend to misstatements of the evidence. The Murray court summed up by saying: “[W]e are unpersuaded that the court’s admonition to the jury not to treat the lawyers’ arguments as evidence has any prophylactic or curative value where the prosecutor’s comments mischaracterize the law rather than the evidence.” Id. ¶ 39 (emphasis added). Consequently, even if we were to determine the prosecutor misstated the evidence here, which we do not, Murray simply does not apply.

STATE OF ARIZONA v. LUIS ARMANDO VARGAS, 2 CA-CR 2016-0324 - Opinion

¶1 This case comes to us on remand from our supreme court. State v. Vargas, 249 Ariz. 186, ¶ 25 (2020), vacating State v. Vargas, No. 2 CA-CR 2016-0324 (Ariz. App. Jan. 29, 2019) (mem. decision). The sole question before us is whether Vargas has established that several unobjected-to instances of prosecutorial error or misconduct cumulatively deprived him of a fair trial. For the reasons that follow, we affirm.

¶7 On appeal, Vargas challenged his convictions and sentences, arguing eleven instances of prosecutorial misconduct, all involving multiple acts, had cumulatively deprived him of a fair trial. We concluded Vargas’s failure to separately argue fundamental error for each allegation of unobjected-to misconduct constituted waiver of his remaining prosecutorial misconduct claims.

¶8 Vargas petitioned our supreme court for review of our decision, and that court granted review solely as to whether Vargas had “preserv[ed] fundamental error review for individual claims of prosecutorial misconduct by arguing that cumulative instances of . . . misconduct constituted fundamental error.” Concluding Vargas was not required to have argued “that each instance of alleged misconduct individually deprived him of a fair trial,” the court vacated our decision as to Vargas’s cumulative error claim and directed us to consider the claims we had found waived. On remand, we must determine “[w]hether Vargas has carried his burden of persuasion to establish that [error] did occur for each allegation and that they cumulatively denied him a fair trial.”

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¶9 Vargas reasserts his prosecutorial error claims, arguing they cumulatively amounted to fundamental, prejudicial error and deprived him of his right to a fair trial. In addition, he now argues each individual claim constituted fundamental error. To succeed on a claim of prosecutorial error, a defendant must show that error indeed occurred and that there is a “reasonable likelihood . . . that the [error] could have affected the jury’s verdict, thereby denying defendant a fair trial. After “evaluat[ing] each instance of alleged misconduct,” we consider the cumulative effect on the fairness of Vargas’s trial.

The court first distinguishes between prosecutorial error (a mere rules violation) and prosecutorial misconduct (an ethical violation). It then goes painstakingly through 22 instances of alleged prosecutor error and finds not one error, not one morsel of misconduct, and not one iota of unfair prejudice.

¶83 Vargas fails to establish the existence of prosecutorial error or misconduct in connection with any of his arguments on remand. As our supreme court recently clarified, “because none of these instances amount to prosecutorial error, we need not consider if the individual acts collectively amount to ‘persistent and pervasive misconduct.’” Vargas has not met his burden of establishing that cumulative prosecutorial error deprived him of a fair trial.

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TRIAL RESULTS Jury and Court Trial Results April 2021— June 2021 CLOSED ATTORNEY JUDGE CHARGE NO. OF RESULT CO-COUNSEL COUNTS INVESTIGATOR PARALEGAL MITIGATION

JUSTICE COURTS (PUBLIC DEFENDER)

4/9/2021 S. MEALEY GOODMAN TR2019-150780-001 JURY TRIAL – DUI-LIQUOR/DRUGS/VAPORS/COMBO, M1 1 GUILTY AS CHARGED DUI W/BAC OF .08 OR MORE, M1 1 EXTREME DUI-BAC .15- .20, M1 1 EXTREME DUI-BAC > .20, M1 1

4/13/2021 C. WHITNEY GETZWILLER JC2020-135669-001 COURT TRIAL - DISORDERLY CONDUCT-FIGHTING, M1 1 GUILTY AS CHARGED

6/17/2021 B. GRIFFIN WILLIAMS TR2020-130098-001 JURY TRIAL - UI-LIQUOR/DRUGS/VAPORS/COMBO, M1 1 NOT GUILTY DUI W/BAC OF .08 OR MORE, M1 1 EXTREME DUI-BAC > .20M1 1 TRIAL GROUP A (PUBLIC DEFENDER)

6/18/2021 L. ANDERSON HOPKINS CR2018-158216-001 COURT TRIAL - J. CAPPELLINI MURDER 2ND DEG-KNOWING, F1 1 GUILTY AS CHARGED B. NELSON D. MCGIVERN R. MENENDEZ

TRIAL GROUP B (PUBLIC DEFENDER) 5/7/2021 J. YANKOVICH RYAN- CR2019-109538-001 JURY TRIAL - TOUHILL AGG ASLT-OFFICER, F5 1 NOT GUILTY RESIST ARREST-PHYSICAL FORCE, F6 1

7/7/2021 D. BENJAMIN MEAD CR2018-161182-001 JURY TRIAL - C. SLINGBAUM NARCOTIC DRUG-POSSESS/USE, F4 2 NOT GUILTY

4/29/2021 R. GOLUBOVICH ADLEMAN CR2020-117427-001 JURY TRIAL - W. PAJAK NARCOTIC DRUG-POSSESS/USE, F4 2 GUILTY AS CHARGED

T. ACORDA

4/20/2021 K. GIPSON-MCLEAN ALLEN CR2019-006180-001 JURY TRIAL - K. ARREOLA POSS WPN BY PROHIB PERSON, F4 1 GUILTY LESSER/ DANGEROUS DRUG-POSS/USE, F4 1 FEWER DRUG PARAPHERNALIA-POSSESS/USE, F6 1

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TRIAL RESULTS Jury and Court Trial Results April 2021— June 2021 CLOSED ATTORNEY JUDGE CHARGE NO. OF RESULT CO-COUNSEL COUNTS INVESTIGATOR PARALEGAL MITIGATION

TRIAL GROUP C (PUBLIC DEFENDER)

6/11/2021 Z. EVANS GIAQUINTO CR2020-100830-001 JURY TRIAL – J. ROBERTS DUI MFAIL REGISTER AS SEX OFFENDER, F4 1 GUILTY ON LESSER/ SEX OFFEND FAIL CONFIRM ID, F6 1 FEWER 4/27/2021 W. MEETH COOPER CR2020-107361-001 JURY TRIAL – M. KUNKEL AGG ASLT DV-IMPEDE BREATHING, F4 1 GUILTY ON LESSER/ W. KUNZ DISORDERLY CONDUCT-FIGHTING, M1 1 FEWER ASSAULT-INTENT/RECKLESS/INJURE, M1 1 5/26/2021 M. STARK ALLEN CR2020-111284-001 JURY TRIAL – L. TAYLOR AGGRAVATED ASSAULT, F2 7 GUILTY ON LESSER/ RESISTING ARREST, F6 1 FEWER MISCONDUCT INVOLVING WEAPONS, F4 1 UNLAW FLIGHT FROM LAW ENF VEH, F5 1 4/23/2021 J. CEOLA GARFINKEL CR2020-114629-001 JURY TRIAL – W. KUNZ AGG ASLT-DEADLY WPN/DANG INST, F3 1 GUILTY ON LESSER/ DISORD CONDUCT-WEAPON/INSTR, F6 1 FEWER THREAT-INTIM W/INJ-DMGE PROP, M1 1 6/17/2021 M. MAYER ALLEN CR2020-106421-001 JURY TRIAL - J. CASEY THEFT, F4 1 GUILTY AS CHARGED C. PETERSON

SPECIALITY GROUP (PUBLIC DEFENDER)

4/28/2021 A. DUNCAN RYAN CR2019-001660-001 JURY TRIAL - A. DEMARSE MURDER 1ST DEG-PREMEDITATED, F1 1 NOT GUILTY K. TOMAIKO ASSAULT-INTENT/RECKLESS/INJURE, M1 1 S. FISCHER B. MATHURIN TRAINING (PUBLIC DEFENDER)

4/27/2021 J. ROTH GARFINKEL CR2019-005055-001 JURY TRIAL - W. KUNZ AGGRAVATED ASSAULT, F4 1 NOT GUILTY ASSAULT-INTENT/RECKLESS/INJURE, M1 1

VEHICULAR (PUBLIC DEFENDER) 6/3/2021 S. FINEFROCK GIAQUINTO CR2019-124292-001 JURY TRIAL – B. YOUNG AGG DUI-LIC SUSP/REV FOR DUI, F4 2 GUILTY ON LESSER/ E. COSS LEAVE ACCID/DAMAGE ATTEND VEH, M2 1 FEWER

FELONY TRIAL (LEGAL DEFENDER)

6/14/2021 A. SITVER FISH CR2019-005369-001 JURY TRIAL - G. CRUZ-BERNAL SEXUAL EXPLOITATION OF MINOR, F2 10 GUILTY AS CHARGED

CAPITAL (LEGAL DEFENDER)

6/22/2021 G. PARZYCH ADLEMAN CR2018-124446-0001 JURY TRIAL - E.WARNER MURDER 1ST DEG-PREMEDITATED, F1 1 GUILTY AS CHARGED J. MENDOZA TAMP W/PHY EVID-DESTROY/ALTER, F6 1 NATURAL LIFE T. WILLIAMS ABAND/CONCEAL DEAD BODY/PARTS, F5 1 L. KOMETER THEFT-MEANS OF TRANSPORTATION, F3 1 HINDERING PROSECUTION 1ST DEGREE - 1 INVOLVING TERRORISM/MURDER, F3 1

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A publication of the Maricopa County Public Defender’s Office Delivering America’s Promise of Justice for All

Editors Stephanie Conlon Sierra Taylor

Assistant Editor Corey Smith

Office 620 West Jackson St., Suite 4015 Phoenix, AZ 85003 p: 602.506.7711 f: 602.372.8902 [email protected]

for THE DEFENSE is the training newsletter published by the Maricopa County Public Defender’s Office, Gary Kula, Director

for THE DEFENSE is published for the use of the Public Defense community to convey information to enhance representation of indigent clients. Any opinions expressed are those of the authors and not necessarily representative of the Maricopa County Public Defender’s Office.

for THE DEFENSE Volume 31, Issue 1 Maricopa County Public Defender Newsletter April, 2021 Prop 207: Decriminalization, In This Issue: Expungement, and Future Prop 207: Considerations Decriminalization, Expungement, and Future By Kassandra Garcia and Alejandra Curiel-Molina, Considerations Defender Law Clerks By Kassandra Garcia and Alejandra Curiel-Molina, On November 30, 2020, Arizona voters passed Proposition 207, Defender Law Clerks otherwise known as the Smart and Safe Arizona Act. Prop 207 Page 1 decriminalizes recreational cannabis use and possession within the State for anyone who is at least 21 years old. This type of legislation has A Fix For Batson’s Failures: been long overdue. Due to bi-partisan support lacking in the legislature, decriminalization of recreational marijuana use was left up to the People Proposed Rule 24 of the to pass via the voter initiative process. Arizona Rules of The The trend towards legalization started in 2010 after 50.13% of Arizona Supreme Court voters passed the Arizona Medical Marijuana Initiative – Prop 203 – By Nicholas Bustamante, which allows persons with specific medical conditions to be treated with Defender Law Clerk and Kevin Heade, Defender Attorney certain amounts of marijuana for personal use. I Recreational cannabis Page 7 was first put on the ballot in 2016 as the Arizona Marijuana Legalization Initiative - Prop 205. Even though this initiative did not pass, 48.68% of Arizona voters voted in favor of it. ii From then on, support for Unconscious and recreational cannabis continued to rise, leading to 60.03% of Arizona Conscious Bias voters voting in favor of legalization with Prop 207, only a mere five By Charles Klass, iii years later during this past election. Defender Law Clerk Decriminalizing the use of cannabis nationwide is a crucial step towards Page 12 ending the devastating policies implemented as a result of the War on Drugs. Decriminalization was especially crucial in Arizona. Prior to the Opinion Summaries passage of Prop 207, Arizona was the only state in the nation to classify January through March, 2021 Page 15 personal possession of marijuana – less than two pounds – as a felony. Even though prosecutors maintained a level of discretion to charge these low-level marijuana offenses as misdemeanors, many people in Trial Results Arizona still received felony convictions, often baring access to various January through March, 2021 employment opportunities and public benefits like public housing Page 34 assistance or food stamps. Upcoming Events Page 36

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Prop 207 Codified

Prop 207 amended Titles 36, 42 and 43 of the Arizona Revised Statutes. The portions relevant to expungement have been codified into the following statutes:

Allowable possession and personal use of marijuana, A.R.S. § 36-2852

A.R.S. § 36-2856 Smart and safe Arizona fun; disposition; exemption

A.R.S. § 36-2862 Expungement; petition; appeal; dismissal of complaints; rules

Breakdown of Prop 207

Decriminalized Behavior and Penalties for Violations

As previously mentioned, Prop 207 decriminalizes recreational marijuana use for adults who are at least 21 years old. Adults may now legally possess, consume, purchase and transport no more than once ounce of marijuana or five grams of marijuana concentrate. A.R.S. § 36-2852(1). Further, an adult may now possess, use, purchase, sell, manufacture, or transport paraphernalia relating to the consumption of marijuana or marijuana products. A.R.S. § 36- 2852(5).

An adult may also possess, transport, cultivate or process no more than six marijuana plants at their primary residence. Additionally, no more than twelve plants may be present at a single residence, where two or more adults reside at one time; cultivation must take place in an enclosed area that is equipped with a lock or other security measure that prevents access by minors; and the plants may not be visible to the public. A.R.S. § 36-2852(2). Further adults may transfer no more than once ounce of marijuana, of which is not more than five grams of marijuana concentrate, or six marijuana plants to another adult, so long as they are not being paid or advertising to the public. A.R.S. §§ 36-285(3) & (4).

Violations of the above statutes are civil offenses for a 1st time violation and a petty offense or misdemeanor for any violations thereafter. However, this only applies to persons who possess no more than two and a half ounces of marijuana, or no more than twelve and a half grams of marijuana concentrate. A.R.S. § 36-2853.

Further, Prop 207 does not allow driving, flying or boating while impaired to even the slightest degree by marijuana or marijuana products. Nor does it prevent the State from enacting and imposing penalties for such conduct. A.R.S. § 36-2851.

Reasonable Suspicion and/or Probable Cause for Detention, Search, or Arrest

Pursuant to Prop 207, legal recreational marijuana use may no longer serve as a basis for the detention, search, or arrest of individuals. It also cannot serve as the sole basis for the seizure or forfeiture of assets. However, this does not apply to individuals who are suspected of driving under the influence; individuals who are under the age of 21; individuals who are suspected of providing marijuana or marijuana products to individuals who are under the age of 21; or individuals who are otherwise suspected of violating any provision of A.R.S. §§ 36-2851 or 36-2853.

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Increased Tax Revenue and Funding

Prop 207 establishes a 16.0% excise tax that will be added to all recreational sales. The revenue collected from this tax is intended to fund various programs and state agencies. Specifically, Prop 207 establishes provisions that are intended to fund community colleges, state infrastructure, public safety agencies, justice reinvestment projects, and programs aimed at addiction prevention, substance abuse treatment, and suicide prevention.

Some of the most notable areas of funding established by Prop 207 are the Social Equity Ownership Program, the Justice Reinvestment Fund, and the funding provided to police departments.

The Social Equity Ownership Program is intended to promote ownership of marijuana dispensaries by individuals who have been disproportionately impacted by the previous enforcement of marijuana laws. This program will not be funded by the tax revenue produced by marijuana sales. Rather, this program will be funded by the Medical Marijuana Fund and is set to receive two million dollars. There are about 160 dispensary licenses available statewide. An additional 26 have been created and earmarked for persons who apply as social equity applicants. Unfortunately, Prop 207 provides little to no guidance as to who exactly qualifies for this program and how the application and selection process should work. As such, the Arizona Department of Health Services is currently responsible for establishing these guidelines.

The Justice Reinvestment Fund is partially funded by the tax that is to be added to all recreational marijuana sales. The money allocated towards this fund is intended to promote alternatives to incarceration, such as substance abuse treatment and prevention, restorative justice efforts, jail diversion, and workforce development in communities who have suffered disproportionately high rates of arrest and incarceration at the hands of the State.

One of the biggest critiques of Prop 207 is the amount of funding it directs towards state law enforcement agencies. Prop 207 funnels 31.4% of established funds to various public safety agencies, like municipal police departments, fire departments, and sheriff’s offices. While not all the money allocated to public safety agencies goes to police departments, a large chunk of it does. This directly conflicts with various members of the community who are calling for police departments to be defunded since instances of police brutality, abuse and misconduct have largely gone unchecked in Arizona. Any concerns over the way Prop 207 distributes funds may be challenging to address considering how difficult it is to amend voter initiatives in the state of Arizona. Because Prop 207 is a voter initiative, a super majority – nearly impossible to achieve in the current political landscape – is needed within the Arizona Legislator to amend it.

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Expungement

The Justice Reinvestment Fund provides funding to support the creation and implementation of programs that notify and assist individuals who are eligible to have their previous convictions expunged. It’s anticipated that thousands of people will be eligible for expungement. Individuals who qualify may begin the process of expungement on July 12, 2021.

Currently, there is no system in place to process applications for expungement. However, the Maricopa County Office of the Public Defender is actively working with the Maricopa County Superior Court, the Maricopa County Attorney’s Office and representatives from the Sandra Day O’Connor College of Law to develop a system.

Prop 207 Expungement Eligibility

Expungement in Arizona only applies to the offenses addressed by A.R.S. § 36-2852, including:

Marijuana Flower or Cannabis/Concentrate for Personal Use: A person convicted of possession, consumption, or transportation of 2.5 ounces or less of marijuana—of which not more than 12.5 grams was in the form of marijuana concentrate—is eligible to have that offense vacated and expunged from their record.

Marijuana Plants for Personal Use: A person convicted of possession, consumption, cultivation, or processing of not more than six (6) marijuana plants at an individual’s residence for personal use is eligible to have that offense vacated and expunged from their record.

Paraphernalia: A person convicted of possession, use, or transportation of paraphernalia related to marijuana cultivation, manufacturing, processing, or consumption is eligible to have that offense vacated and expunged from their record.

Determining whether the offense meets the above eligibility may require reviewing the arrest record, the charging document, the plea agreement, the trial verdict form or trial minute entry, or the sentencing minute entry/order.

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The Expungement Process Generally

A.R.S. § 36-2862 describes the expungement process and allows for a petitioner or the prosecuting agency to file a petition. If filed by the individual:

1. The Court must notify the prosecuting agency of the petition. 2. The prosecuting agency has 30 days to respond. 3. If the prosecuting agency does not stipulate to the petition, the prosecuting agency must prove by clear and convincing evidence that the offense(s) are not eligible for expungement. 4. A hearing may be requested by either party or the court. 5. The court must issue a decision in the form of a signed order or minute entry with findings of fact and law.

If the court grants the petition, the signed order or minute entry must:

1. Vacate the judgment of adjudication or conviction. 2. State that it expunges any record of the petitioner’s arrest, charge, conviction, adjudication, and sentence. 3. State that the petitioner’s civil rights and right to possess firearms are restored (unless petitioner is otherwise not eligible). 4. Require the clerk of the court to notify DPS, the prosecuting agency, and the arresting law enforcement agency. 5. Require the clerk of the court to seal all records relating to the expunged offense and allow only the petitioner or petitioner’s attorney access to those records.

Future Considerations for Litigation

Poor communities and communities of color have been disproportionately harmed by marijuana prohibition. Prop 207 is a step in the right direction to repair some of that damage. However, even though individuals will no longer receive felony convictions for recreational marijuana use, and some convictions may be expunged, there’s some damage that has been left unaddressed in this new legal framework.

For decades, individuals have been forced to pay fees associated with their marijuana convictions. For many low- income individuals, these fees resulted in significant financial burdens. At a minimum, the fine for these violations started at $750.00, but often ranged into the thousands after adding interest, and judges did not have the discretion to suspend any part of this fine. On top of that, depending on their sentence, individuals also had to pay fees associated with probation or with their term at the Department of Corrections. In the end, someone convicted for possession of marijuana could end up paying thousands of dollars, saddling thousands of people with debt. Even though Prop 207 requires that unpaid fines be eliminated, it does not address whether those who have already paid their fees should receive any sort of compensation. This leaves the question, will individuals who are successfully able to expunge their convictions also have any legal avenues to request their money back?

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Another area of possible litigation is sentencing. Marijuana possession felonies have counted towards the number of total felonies an individual has, which is used to categorize an individual into a specific sentencing range. Prop 207 does not address whether sentences for individuals should be altered to reflect the range they would now fall under without the added felony. Likewise, the fear of losing at trial when an individual falls into a longer sentencing range, can often factor into an individual’s decision to take a plea. Can someone who has already pleaded guilty use the fact that they would now fall under a lesser sentencing category as grounds for post-conviction relief?

Additionally, the possibility of marijuana possession has been used as a basis for searches and seizures of other contraband and as a basis for other types of illegal conduct. This allowed officers to jump through Fourth Amendment hurdles and often lead to convictions that were unrelated to marijuana possession. While Prop 207 mandates that the possession and/or use of recreational marijuana or paraphernalia no longer constitutes a basis for searches and seizures, questions remain for those who are currently fighting cases, whose use and/or possession of recreational marijuana was used as reasonable suspicion or probable cause, leading to other unrelated charges. Prop 207 potentially creates new areas of litigation of suppression of evidence, depending on the facts of the case. Conclusion Ultimately, Prop 207 is a step in the right direction. Arizona needed to decriminalize recreational marijuana use/ possession to begin to repair some of the damage done by prohibition. Criminalization and incarceration have inflicted untold damage to our communities, especially to our most vulnerable – the poor and people of color. However, despite the good Prop 207 does, it’s not perfect. It leaves a lot of unanswered questions about how it will develop over time and opens multiple doors for future litigation. Either way, Arizona criminal law is entering a new era and it will be interesting to watch it unfold.

This article does not cover every detail of Prop 207. The full text is available on the Secretary of State’s website. ______i ARIZONA SECRETARY OF STATE, STATE OF ARIZONA OFFICIAL CANVASS 2010 GENERAL ELECTION (2010), https:// apps.azsos.gov/election/2010/General/Canvass2010GE.pdf (last visited Mar. 26, 2021). ii ARIZONA SECRETARY OF STATE, STATE OF ARIZONA OFFICIAL CANVASS 2016 GENERAL ELECTION (2016), https:// apps.azsos.gov/election/2016/General/Official%20Signed%20State%20Canvass.pdf (last visited Mar. 26, 2021). iii 2020 General Election Unofficial Results, ARIZONA SECRETARY OF STATE, https://results.arizona.vote/#/ ballotmeasure/18/0 (last visited Mar. 26, 2021). iv A.R.S. § 13-3405(D).

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A Fix For Batson’s Failures: Proposed Rule 24 of the Arizona Rules of The Supreme Court

By Nicholas Bustamante, Defender Law Clerk and Kevin Heade, Defender Attorney

Batson v. Kentucky 1 has been criticized as an ineffectual approach to eliminating racial discrimination in jury selection.2 Specifically, the three-step test for a Batson challenge has been viewed as overly difficult and in some cases an impossible claim to prove.3

Under Batson, trial courts apply the following test to challenge the use of potential race-based peremptory strikes:

1) a moving party must first make a prima facie case that race motivated the challenged strikes;

2) then the non-moving party must provide race-neutral reasons for the challenged strikes; and

3) the trial court then considers whether the challenging party has carried its burden of proving purposeful discrimination.4

Critics have observed that, absent blatant discrimination, the second and third steps of Batson vitiates the ability to root out racial discrimination in jury selection. Batson’s second step invites superficial explanations that will be accepted so long as they maintain a veneer of race neutrality and the opponent fails to prove the strike was motivated by race.5 The second step “does not demand an explanation that is persuasive, or even plausible”6 as “implausible or fantastic justifications” will pass scrutiny under the second step.7 Courts and litigants often improperly end the analysis here, but as Arizona has recognized Batson’s third step is “gestalt” and essential to the inquiry.8 Batson’s third step requiring “purposeful discrimination” can be impractical to demonstrate, as it requires a trial judge to find that the lawyer making the challenge intentionally engaged in discrimination and the reason proffered was disingenuous. Batson requires judges to discern an attorney’s subjective intent as the disparate impact on jurors is outside the scope of the traditional Batson framework.9 Justice Marshall noted the limitations of Batson in his concurrence by explaining, “[t]he decision today will not end the racial discrimination that peremptories inject into the jury-selection process.”10 Specifically, Justice Marshall warned of the potential for discriminatory strikes to persist after Batson because of implicit bias, noting “a prosecutor’s own conscious or unconscious racism” would lead to stereotypical characterizations of black jurors that would not be ascribed to white jurors and a “judge’s own conscious or unconscious racism” would accept these characterizations as permissible.11 As a result of the emphasis on purposeful discrimination, attorneys are free to discriminate, “provided that they hold that discrimination to an ‘acceptable’ level.”12

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Recognizing the need to eliminate discrimination based on implicit bias in jury selection, in 2018, Washington became the first state to adopt a rule incorporating implicit bias in its Batson analysis. Wash. Gen. R. 37(a) provides “the purpose of this rule is to eliminate the unfair exclusion of potential jurors based on race or ethnicity.” Under General R. 37, objections to peremptory challenges are not restricted to instances of purposeful discrimination. Rather, a successful challenge can be made when an “objective observer” could view race or ethnicity as a factor in the peremptory strike. The rule defines an objective observer as someone “aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington state.” This rule is preferable to Batson because it does not require the court to find a purposeful and subjective intent to discriminate to deny the peremptory challenge.

California has followed Washington’s lead with a state statue, General Assembly Bill No. 3070, in 2020. The legislation expands the class of protected jurors beyond race and ethnicity and requires the courts to determine whether a reasonable person would “view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge.”

In the backdrop of these changes, the Civil Practice and Procedure Committee and the Criminal Practice and Procedure Committee of the Arizona State Bar formed a Batson Working Group to study the Washington reform with the intention of making improvements and petitioning the Arizona Supreme Court for adoption of the rule. Proposed as Rule 24 of the Rules of the Arizona Supreme Court, trial courts in criminal and civil cases would apply a modified three-step test:

1) an individual only needs to make an objection to a proposed peremptory challenge on the basis of improper bias (unconscious or explicit);

2) the party making the challenge must state the reason, and;

3) If the court determines that any reasonable person could view race, sex, gender, religion, national origin, ethnicity, disability, age, or sexual orientation, as a conscious or unconscious factor in the use or waiver of a peremptory challenge, then the objection must be sustained, even if other valid reasons are offered.

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To justify this proposed rule change, the working group reviewed 160 Arizona appellate Batson decisions since 1987. The working group concluded that Arizona’s appellate courts found consequential Batson error in only 4.4% of trial cases and remanded for further Batson findings by the trial court in an additional 2.5% of cases. In the remaining 93.1% of cases (149), Arizona’s Supreme Court or the Court of Appeals found that the record supported the trial court’s determination that the objecting party had not established purposeful discrimination by the striking party. Analysis of these cases showed that of the cases where the courts found peremptory strikes were properly exercised - Latinos and Black jurors were the most likely to have been excluded from juries. Of the 149 cases where Batson challenges were unsuccessful, 106 Latinos and 71 Black jurors were excluded from the pool. These disproportionate findings are similar to studies from other states.13

These findings strongly suggest that Batson has failed in Arizona. By modifying Batson to include an assessment of implicit bias and reducing the burden of the objecting party, rather than defaulting toward the unfair exclusion of jurors, the proposed rule aims to default toward their inclusion.

To further address the impact implicit bias plays in jury selection, subsection (g) of proposed Rule 24 provides that the following reasons are presumptively invalid reasons to exclude a juror:

(i) having past unfavorable experiences with law enforcement officers;

(ii) having a close relationship with people who have been stopped, arrested, or convicted of a crime;

(iii) living in a high-crime neighborhood;

(iv) having a child outside of marriage;

(v) receiving state benefits; and

(vi) not being a native English speaker.

These presumptively invalid reasons track the language used in both the California and Washington rules. The Batson Working Group found social science research documenting the use of these reasons as race-neutral reasons in Arizona courts and other jurisdictions despite the fact that a wealth of social science data establishes that the reasons are disproportionately related to race or ethnicity.

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Another strength of the proposed rule is subsection (f), which spells out the circumstances that should be considered when assessing the propriety of a strike upon an objection. These reasons track existing Batson procedures but discourages waiver of a full consideration of the totality of the circumstances by explicitly including them in the language of the rule.14 Additionally, subsection (h) of the proposed rule also requires notice of the intent to rely on demeanor or conduct so that it may be verified as a proper basis for a strike.15

Each of the proposed changes address well-documented shortcomings of the Batson test while preserving the long tradition of the use of peremptory strikes in jury trials.

Arizona has an opportunity to join the forefront of Batson reform with the adoption of Rule 24 of the Rules of the Arizona Supreme Court. But the proposal is far from a done deal. The Arizona Supreme Court is receiving comments from the public until May 03, 2021.16 And the Arizona Supreme Court has created a Task Force on Jury Data Collection, Practices, and Procedures which will study the proposal and make recommendations to the Arizona Judicial Council by October 1, 2021.17

Thirty-five years is long enough for a failed framework to be in place. You can play an important role in ensuring that no juror is ever excluded from service again based on race, ethnicity, national origin, sex, gender, sexual orientation, disability, or religion by filing a comment in support of this petition.

Comments may be as simple as one sentence of support or a complex legal pleading. They may include legal or historical analysis or simply share an experience or observation concerning the prevalence of discrimination in the 21st Century.

The promise of the 14th Amendment is long overdue, and your support can bring about meaningful reform to ensure its fair application during jury selection.18

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1 476 U.S. 79 (1986).

2 James S. Wrona, Hernandez v. New York: Allowing Bias To Continue in the Jury Selection Process. 19 Ohio NUL Rev. 151 (1992); Anna Roberts, (Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias, 44 Conn. L. Rev. 827 n. 86 (2012).

3 Aliza Plener Cover, Hybrid Jury Strikes, 52 Harv. C.R.-C.L. L. Rev. 357, 365-66 (2017).

4 Batson v. Kentucky, 476 U.S. 79, 97-98 (1986).

5 Purkett v. Elem, 514 U.S. 765, 767-68 (1995).

6 Id.; See also Harris v. Haeberlin, 752 F.3d 1054, 1059 (6th Cir. 2014) (“The justification need not be persuasive; in fact, if true, it may even be ‘only a frivolous or utterly nonsensical justification.’”).

7 Purkett, 514 U.S. at 768. See also Jonathan Abel, Batson’s Appellate Appeal and Trial Tribulations. Colum. L. Rev.

118.3 713 at 719 (2018) (noting “the trouble with this framework is at step two: The prosecutor can make up any justification she wants for the strike, and those justifications can be impossible to disprove”).

8 State v. Porter, 248 Ariz. 392, 397, ¶ 14 (Ct. App. 2020), review granted (Nov. 3, 2020).

9 See Hernandez v. New York, 500 U.S. 352, 372 (1991) (O’Connor, J., concurring) (reasoning parties must prove “the prosecutor intentionally discriminated” on the basis of race in order to prove a Batson violation); United States v. United States v. Green, 599 F.3d 360, 377 (4th Cir. 2010) (“When a party challenges his opponent’s exercise of a peremptory challenge on equal protection grounds, the party bears the burden of proving intentional discrimination.”).

10 Batson, 476 U.S. at 102-03 (1986) (Marshall, J., concurring).

11 Id. at 106.

12 Id. at 105.

13 See, e.g., Pollitt, D., & Warren, B., Thirty Years of Disappointment: North Carolina’s Remarkable Appellate Batson Record, 94 N.C. L. Rev. 1957, 1957 (Sept. 2016) (“In the 114 cases decided on the merits by North Carolina appellate courts, the courts have never found a substantive Batson violation where a prosecutor has articulated a reason for the peremptory challenge of a minority juror”); Semel et al., Berkeley Law Death Penalty Clinic, Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors at vii-viii (June 2020) (“in...30 years, the California Supreme Court has reviewed 142 cases involving Batson claims and found a Batson violation only three times (2.1%)”; California courts of appeal “found error in just 18 out of 683 decisions” from 2006 through 2018).

14 See State v. Medina, 232 Ariz. 391, 405, ¶ 49 (2013) (holding that trial courts are not obligated to conduct a comparative juror analysis and that a defendant may waive the issue on appeal by not making the record at trial.)

15 See State v. Ross, 1 CA-CR 19-0214, 2021 WL 869049, at *3 (App. Mar. 9, 2021) (“Because the record here lacked any ‘relevant facts’ supporting the ‘blessing’ explanation, which depended solely on a disputed avowal of conduct purportedly occurring in open court, it was inadequate.”)

16 See AZ ST S CT Rule 28(e) (procedures for filing comments to pending rule petitions.)

17 Arizona Supreme Court Administrative Order No. 2021-35.

18 See R-21-0008, “Petition to Amend the Arizona Rules of Supreme Court to Adopt New Rule 24 on Jury Selection” (available at https://www.azcourts.gov/Rules-Forum/aft/1196).

for THE DEFENSE April 2021 Volume 31, Issue 1, Pg. 12 Unconscious and Conscious Bias

By Charles Klass, Defender Law Clerk

Tim Overton, ASU College of Law adjunct professor on Race and the Law, spoke about the unconscious biases we experience as a natural part of the human condition. A bias is an inclination of temperament or outlook, especially one that is grounded in a personal or unreasoned judgment. Unconscious biases are those we are not even aware that we have.

Traditionally, discrimination is thought to be a conscious act, something done hatefully and intentionally. However, that is not the whole story. The conscious and unconscious brain look at things differently. While you may be consciously processing 40 pieces of information at a time, your brain is also processing an additional 11 million pieces of information you don’t even think about. Your brain acts to categorize, group, tag, and sort this information without being guided by conscious thought. Unconscious bias is the product of the brain’s lightning fast processing speeds. The brain takes these stimuli and tries to craft explanations your conscious mind can understand. To do this your brain uses assumptions and biases to paper over gaps in perception so you can have a “complete” if not accurate understanding of what you are experiencing.

Here are several examples of how bias might impact our thinking on an unconscious level. It is common for a person to have an affinity bias and favor things and people that are more like ourselves. Another kind of bias, a perception bias, may taint the unconscious mind, stopping a person from making objective judgments about a certain group based on stereotypes and assumptions that have been subconsciously internalized. On an individual level, we might experience a halo effect, a tendency to think a person we like can do no wrong. In contrast, the horns effect is the belief a person you dislike can do nothing right. Finally, we might be afflicted with a confirmation bias, a tendency to only accept information that confirms a pre-existing view. Using shortcuts like this, your brain works to create a more complete understanding of the situation you are experiencing. However, the results are a picture that is “complete but inaccurate.” There are numerous academic studies that demonstrate the impacts of bias.

One of the most famous studies on bias was the MIT and University of Chicago resume study. The researchers sent out 1250 identical resumes. Half were in a group with “white names” like Brendan, Gregg, Emily, and Anne while the other half had “black names” like Tamika, Aisha, Rasheed, or Tyrone. Despite the only difference on the resumes being the names, resumes with “white names” were selected for 50% more interviews. These selections were tainted with perception bias as negative racial stereotypes were attached based solely on the name provided.

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Another study asked respondents if they’d rather have a police chief with decades of hands on experience on the streets or one with experience in a leadership role. When the “street smart” chief was a man and the “book smart” chief was a woman, respondents preferred the man. When the roles were reversed and the woman had the “street smarts”, respondents still preferred the male candidate. This study demonstrated how the brain will change the criteria we use to make an evaluation to reach an unconsciously predetermined outcome, an example of confirmation bias in action. These studies provide strong evidence of the need to be “blind” when making hiring considerations by removing identifying information from resumes and making decisions solely on the substance of a resume. This additional step serves to disrupt a routine process where unconscious bias may prevent the most qualified candidate from getting the job.

A common way that unconscious biases creep into everyday life is through microaggressions. Microaggressions are commonplace verbal, behavioral, or environmental statements which demean or insult others whether intentional or not. These are common phrases and questions that may be hurtful to someone. Even seemingly positive comments may bite. For example, saying “I don’t see color” minimizes different identities and backgrounds for an assimilative perspective.

We should not be afraid to do something when we encounter bias. Stanford’s Social Psychological Answers to Real World Questions Think Tank (SPARQ) has some excellent advice on how to confront bias and racism. SPARQ found that calling someone racist, sexist, or xenophobic is perceived as a threatening message and gets you nowhere. These labels activate the fight or flight mechanism in the brain which shuts off the ability to listen and learn. The reaction in this situation will be driven by the amygdala, the part of the brain that reacts to danger. Hostility closes the mind.

Instead, when addressing incidents there are a few important steps to take. First is building a support team, a formal or informal network with whom you can discuss this issue or help you respond. Having support in place is important so that when an issue arises there can be a response. Getting a team together can happen at any time but it is best to have this support system in place ahead of any potential incident. Next, if you can, you want to calmly but directly address the incident and turn it in to a teachable moment. This doesn’t have to be immediate, formal, or in front of the group. What is important is that this conversation is rational and level-headed so the pre-frontal cortex, the part of the brain which controls higher thought, is in charge rather than the amygdala. If you can keep your calm, a great immediate response is to ask the person that made the offending comment, “what did you mean by that?” This allows them an opportunity for self-reflection and you can educate them as to why the particular comment or action was inappropriate. Finally, you’ll want to report the incident. Depending on what happened you might want to tell your peers, a sponsor or mentor, a diversity leader, or management.

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One important thing to know is that we can change our own biases. Being aware of your own bias is a critical step to making a change. When you recognize you have a bias and want to address it, the most successful way of changing bias is through intergroup contact. By engaging with people that are different, it becomes more difficult to dehumanize them and your brain’s unconscious reactions to that group begins to shift. Sharing earnest experiences with people different from yourself can help change biases. A great analogy for the three steps of integration is comparing it to a party. Diversity is inviting someone different to the party. They are there but they might not be participating. Inclusion is asking that person to dance. This brings them into the exchange of ideas. Beyond inclusion is belonging. That sense of belonging comes when you ask them to teach you a dance they know. Now that person gets to share something special and unique about them that you may not know. Sharing authentic experiences goes a long way to changing biases that may be held consciously or unconsciously.

Additionally, you can train your brain to be more thoughtful and less prone to reactive bias. MRI scans have shown that a mere 8 weeks of mindfulness practice will change the shape of your brain. The reactive amygdala shrinks while the prefrontal cortex, site of higher order functions, grows slightly. If this part of your brain is empowered, you can make more logical decisions and your brain won’t be as quick to make the assumptions that result in bias.

Overcoming bias and creating diverse groups where people feel they belong has real benefits. A diverse group is more likely to have different strategies for problem-solving and self-expression. This helps to thwart groupthink by encouraging attacking a problem from different angles. A multitude of academic studies suggest diverse groups tend to solve problems and mysteries more accurately. This is an important consideration for jury selection. If you can select a panel that is diverse in race, gender, and ideology, that jury may be more deliberative and come to a more thoughtful decision than a homogenous panel.

By learning about unconscious bias we can take steps to address it. These biases often play a critical and understated role in the work we do. Knowing these biases exist and how they impact a person’s thinking can help us better understand the decisions made by jurors, judges, prosecutors, police, clients, and even ourselves. These biases are often at work in criminal prosecutions, some obviously visible, others less so. Being aware of the unconscious biases that afflict the human mind is a critical first step towards trying to address the negative effects of bias in the criminal justice system. Use what you’ve learned and take some time to reflect on the impact these unconscious biases may have had in the cases you are working on. While reflecting don’t just focus on the bias a police officer or juror may have had but think about your own biases and how those impacted the decisions you made in the case. Introspection will help you better know and control your own biases as well as understand the biases of others.

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Arizona Court of Appeals, Division One, by Jason Ceola, Defender Attorney Arizona Court of Appeals, Division Two, by Tammy Wray, Defender Attorney Arizona Supreme Court, by Meagan Swart, Defender Attorney United States Court of Appeals, 9th Circuit, by Meghan White, Defender Attorney United States Supreme Court, by Madeline Mayer, Defender Attorney

State v. Emedi, No.1 CA-CR 19-0650 (Filed March 25, 2021) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2021/1%20CA-CR%2019-0650.pdf

FACTUAL BACKGROUND

Emedi was convicted of multiple felony offenses. Prior to trial, a settlement conference was held before the assigned trial judge. Emedi’s counsel waived any conflict with the trial judge presiding over the settlement conference. The parties then immediately held the settlement conference with the trial judge discussing the state’s evidence, arguments for aggravators, the plea offer, and sentencing exposure. The offer was ultimately rejected, and trial and sentencing proceeded with the same judge. For one of the felony convictions, count 4, the jury found only catch-all aggravating factors and he received a slightly aggravated sentence.

ISSUES

1. Is waiver of conflict enabling the trial judge to conduct a settlement conference personal to the defendant?

2. Was there fundamental error through enhancing Count 4 beyond the statutory maximum?

HOLDINGS

1. No, waiver of the conflict is not personal to the defendant, instead it may be waived by counsel. The relevant rule is Rule 17.4(a)(2)—that the assigned trial judge “may participate in settlement discussions only if the parties consent.” The court notes that the Rules define defendant to include their attorney within the context of certain rules; and parties to mean the state and defendant. Thus in the context of Rule 17.4(a)(2), parties means the state and the defendant and their attorney (with settlement authority). This is contrasted with other rules that specifically require a defendant’s input/action rather than their attorneys. Because 17.4(a)(2) does not specifically the actual defendant provide consent, it is not personal to them under the rule. Nor is it a right so fundamental as to only be waivable by the defendant. The court likens waiver of settlement conflict to other rights that can be waived by an attorney, including things such as: pursuing—or not—certain arguments, the decision to make objections, to call witnesses other than the defendant, waiver of speedy trial rights, etc. The measures in 17.4(a)(2) are not constitutionally required and do not implicate due process; instead that waiver of conflict is one of many tactical decisions that an attorney may make on their own.

2. Yes, there was fundamental error because no statutory aggravator was found for Count 4—only catch-all aggravators. But to aggravate beyond the presumptive sentence at least one statutory aggravator must be found by the jury; thus Emedi should only have received the presumptive sentence at most. The court notes findings implicit in the guilty phase were inconsistent with the findings—or lack thereof—in the aggravation phase, but that juries aren’t required to be consistent.

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State v. Hood, No. 1 CA-CR 20-0006 (Filed March 18, 2021) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2021/1%20CA-CR20-0006%20-%20State%20v.%20Hood%20 -%20FINAL.pdf

FACTUAL BACKGROUND

Victim AH ran away from home at 13 years old and met Hood when she was 16yo and working as a prostitute. AH told Hood she was 19 years old. Hood became her pimp and placed ads for her services as well as directing her to work in particular parts of Phoenix. He set prices for her sexual services and collected her earnings using a wire service. Also, he videotaped himself having sex with her at least once, refusing to delete the video after AH requested. He was charged and convicted of myriad offenses including, in relevant part, child sex trafficking and two counts of sexual exploitation of a minor.

ISSUES

Hood raises multiple challenges on appeal. None are successful. His claims are:

1. Proof of knowledge that AH was a minor was required for convictions of child sex trafficking and sexual exploitation of a minor.

2. That the case agent should not have been permitted to testify as a fact witness AND an expert.

3. That the jury should have been instructed that contributing to the delinquency of a minor is a lesser-included offense of child sex trafficking and sexual exploitation of a minor.

4. And that the conviction for two counts of sexual exploitation based on the same conduct was multiplicitous in violation of his double jeopardy rights.

HOLDINGS

1. The statutes in question are not written in such a way that “knowing” modifies “minor.” The court analogized this with prior rulings that sex conduct with a minor does not require an offender to know the individual is under 18. It further compared these statutes with aggravated assault on a police officer which specifically requires the offender know or have reason to know the victim is a peace officer, and also with the prohibition on soliciting sex conduct with another person knowing or having reason to know that person is a minor. Thus the court decided that the legislature did not intend to require someone know their victim is a minor for either child sex trafficking or sexual exploitation of a minor.

2. The court noted that there can be concerns when a case agent testifies as both an expert and fact witness. But because no objection was made, Hood had to show error and prejudice from this testimony. Hood claims the trial court should have bifurcated the testimony on its own, or provided some sort of jury instruction. The court finds no authority to support either, and also noted that there was a clear delineation in the testimony between the fact and expert witness portions by way of the prosecutors signposting. Beyond that, Hood was unable to express any effect on the jury that would cause prejudice.

3. On the facts of this case, and assuming without deciding that contributing to the delinquency is a lesser of either of these two offenses, Hood was not entitled to a lesser instruction. “A lesser-included offense instruction is ‘necessarily included’ and required ‘only when it is lesser included and the evidence is sufficient to support giving the instruction.’” Here, Hood failed to demonstrate what evidence for the two greater offenses was lacking, and the separate evidence that would have instead supported a contributing to the delinquency conviction. Further, based on the record and Hood’s defense that AH was voluntarily engaging in prostitution and fabricating her story, there wasn’t evidence that could have supported a contributing to the delinquency lesser.

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4. While it is true that if a single offense is charged in multiple counts, the counts are multiplicitous and a double jeopardy violation could exist; not every such fact pattern will implicate double jeopardy. The Blockburger test must be employed to determine if each count requires proof of a fact that the other does not. Here, Hood was charged with two counts of sexual exploitation of a minor. One count was for the recording of a sex video with AH; one count was for the possession of said sex tape. And the jury was instructed as such. Therefore, each count requires proof of a fact that the other does not and, in fact, refer to different criminal acts. Hood argued that recording with out possession is factually impossible, but even if that argument were true the evidence supported that he continued to possess it after recording and after AH asked him to delete it.

State v Murray, No. CR-19-0368-PR & CR-20-0008-PR (Consolidated) (Filed March 18, 2021) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2021/CR190368PR.pdf

FACTUAL BACKGROUND In December 2016, brothers Easton and Claudius Murray went to the apartment of O.C., a friend and Claudius’s former roommate. According to O.C., the brothers asked him to store something for them. When he refused, Easton pulled a taser from his pocket and shocked O.C. Easton then told Claudius to shoot O.C. Claudius shot O.C. in the leg. A neighbor testified that although he did not understand what was being said (foreign language) he saw two men trying to get into O.C’s apartment, heard a scuffle, an argument in a foreign language, and multiple gunshots. When police arrived to O.C.’s apartment, they discovered an eight-pound bale of marijuana, scales, cell phones, packing and shipping materials. O.C. testified that the Murray brothers stored their marijuana and paraphernalia at this house.

The defendants were both charged with aggravated assault and their cases consolidated. O.C. testified at trial; the brothers did not. Defense counsels, however, highlighted the inconsistencies in O.C.’s testimony, as well as his purported motive to testify in exchange for immunity from drug charges and the State’s assistance in delaying his deportation.

Following the defense’s closing argument, the prosecutor did his rebuttal argument, including the following about the reasonable doubt standard: “So here is how to think when you might hear somebody say back there, well, I think one or both defendants might be guilty but I’m not sure it’s beyond a reasonable doubt. Now, stop and ask yourself another question at that point. Why did I just say that? Why did I just say that I think the defendants might be guilty? You are a fair and impartial juror. If you are thinking that, if you are saying that, is it not proof that you have been persuaded by the evidence in the case beyond a reasonable doubt? Because why else would you say that were you not convinced by the State’s evidence? So when you hear yourself say that, ask yourself the second question why, why do I think he is guilty? Because he is guilty because you have been convinced by the State’s case beyond a reasonable doubt. That’s why you think as you do being fair and impartial.” Id. at 4.

Defense counsel did not object; the court did not comment on or correct the statement. The Court did advise that, during closing arguments, what the lawyers say is not evidence, but it may help understand the law and evidence. The defendants were convicted and separately appealed. The Court granted review and consolidated the cases.

ISSUE PRESENTED Did the prosecutor’s single misstatement of the reasonable-doubt standard during a rebuttal argument constitute a fundamental, prejudicial error?

HOLDING The prosecutor’s material misstatement of the reasonable-doubt standard was both fundamental and prejudicial error because it went to the foundation of the case and deprived the defendants of an essential right.

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DISCUSSION A prosecutor’s misstatement of the reasonable-doubt standard, to which a defendant fails to object, implicates both fundamental error review and review for prosecutorial error or misconduct. The Court here aims to clarify the proper fundamental error review applicable to an allegation of a single instance of prosecutorial misconduct.

First, the Court notes that the prosecutor’s misstatement of the reasonable doubt standard constitutes prosecutorial misconduct. While the prosecutor’s misstatement of the law here appears to be an inadvertent error, prosecutors should heed the lesson that dilution of the reasonable doubt standard may have consequences in the outcomes of their cases, and potentially their standing with the bar. To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor’s misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. Basically, a defendant must prove (1) misconduct exists; and (2) a reasonable likelihood exists that the misconduct could have affected the jury’s verdict, thereby denying defendant a fair trial.

But, if a defendant does not object to the alleged prosecutorial misconduct, the claim is subject to fundamental error review. Discussion follows about Escalante’s three-pronged test. The Court holds that Escalante’s fundamental error paradigm is the appropriate framework to assess whether a prosecutor’s single, unobjected-to misstatement of the reasonable-doubt standard warrants a new trial. The Court applies fundamental error review to the prosecutor’s misstatement of the reasonable-doubt standard to determine (1) whether it constitutes prosecutorial error; (2) if so, was the error fundamental; and (3) if fundamental, whether the error was prejudicial.

Error here did exist. The prosecutor’s novel “might be guilty” articulation of the reasonable doubt standard radically departs from the requisite “firmly convinced” standard articulated in Portillo. It unquestionably relieved the prosecution of its constitutionally required burden. This misstatement plainly constitutes prosecutorial error.

Was error fundamental? The Court considers the totality of the circumstances; a defendant establishes fundamental error by showing that (1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial. If the defendant establishes the third prong here, he has shown both fundamental error and prejudice; thus, a new trial must be granted. The Court here finds that the first two prongs are met, but declines to decide whether the third prong is met because the Court wishes to provide guidance on applying Escalante’s prejudice prong to a single instance of prosecutorial misconduct.

Here, the prosecutor’s improper argument went to the foundation of the defense, whose strategy hinged on exploiting the witness’s credibility issues. The inconsistencies in the witness’s testimony, coupled with the self- interested nature of his testimony, rendered him susceptible to a credibility challenge, a problem that the reasonable- doubt standard would only exacerbate for the prosecution. “Against this evidentiary backdrop, the prosecutor diluted the reasonable-doubt standard during his rebuttal argument when his words—the last ones the jury heard from the parties—would be most impactful. To compound the problem, Defendants failed to object, and the court did not correct the prosecutor’s misstatement of the reasonable-doubt standard.” Id. at 13. And the jury instructions only served to reinforce the prosecutor’s error. The court instructed the jury that what the lawyers say is not evidence, but it may help understand the law and the evidence. The Court disagrees that jury instructions cured the error here. A proper instruction is not a “panacea” for error in every case. Here, a proper reasonable-doubt instruction is an inadequate remedy for fundamental, prejudicial error. “The prosecutor did not merely misstate the proper reasonable doubt standard; he provided the jury a logical roadmap to circumvent it while ostensibly following it.” Id. at 15.

“Finally, we are unpersuaded that the court’s admonition to the jury not to treat the lawyers’ arguments as evidence has any prophylactic or curative value where the prosecutor’s comments mischaracterize the law rather than the evidence.” Id. Accordingly, the Court reverses the trial court’s judgements of convictions and sentences, vacates the court of appeals’ opinions, and remands these cases for new trials.

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State v Vargas, No. CR-19-0292-PR (Filed March 9, 2021) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2021/CR190292PR.pdf

State v. Ross, No. 1 CA-CR 19-0214 (Filed March 6, 2021) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2021/CR19-0214%20-%20Ross.pdf

FACTUAL BACKGROUND

Ross, an African-American man, was on trial for multiple felony offenses. During jury selection, the state used one of its peremptory strikes on the only African-American individual on the jury panel. Ross raised a Batson challenge. The prosecutor was then required to offer a race-neutral explanation for striking the only African-American from the panel.

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The first race-neutral explanation was that he was “extremely inarticulate” and “had a very difficult time discussing his prior jury service or even what he did for a living.” The DCA went on to claim “the other jurors were more articulate . . . .” and that this one “would not be able to follow along with the complex arguments that are going to be made . . . .” The trial court dismissed this race-neutral explanation as unsupported by the record evidence.

The second explanation the State offered was that upon first walking into the courtroom, this juror “blessed” the defendant by using his cane to make the sign of the cross at Ross and either said or nodded good luck. Of the ten other individuals in the courtroom, including others at the prosecutor’s counsel table, when this allegedly, literally no one else saw this conduct. Nor was it captured on FTR. Ross’s attorney specifically disputed the blessing occurred. This explanation was given at approximately 5:00PM and the conduct allegedly occurred that morning at 11:00AM. The blessing was not explored in voir dire, nor did the state attempt to use that conduct to justify a strike for cause.

Despite the fact that no one but the prosecutor defending his peremptory strike saw this conduct, the trial judge accepted this explanation from “an officer of the court” as a valid, race-neutral justification. The jury was then empaneled without this juror, and without any African-American jurors, and ultimately acquitted on some counts and convicted on others.

ISSUE

Whether a disputed avowal, alone, describing a juror’s in-courtroom conduct can constitute record evidence to support a race-neutral explanation?

HOLDING

No. Record evidence consists of things like: answers to voir dire questions, demeanor while answering those questions, judge’s observations, and undisputed observations of others.

DISCUSSION

The court starts by noting that avowals by counsel are not evidence (which is disputed at length by the dissent); and that no Arizona case since Batson found that a disputed avowal is sufficient record evidence, which is consistent with decisions from other jurisdictions. Instead, a timely record of courtroom conduct is required. That enables the trial judge—and other relevant—individuals to better determine whether the state’s assertion was correct.

The court notes the ease with which a record of this blessing could have been made. The conduct occurred before voir dire began, yet the prosecutor never once asked any question of the juror regarding the blessing over the several-hours long voir dire process. Had the prosecutor asked any questions, a strike for cause might have been appropriate. But by waiting almost 6 hours until after voir dire had finished, there was no opportunity to create an evidentiary record of the conduct.

The need for an evidentiary record becomes clear because after a race-neutral explanation is given, the burden shifts to the defendant to offer “evidence’ not ‘mere inference to show that the peremptory strike was the result of purposeful racial discrimination.” If the state’s justification is supported only by their avowal it is impossible for the defendant to meet that burden.

DISSENT

The dissent challenges the maxim that an attorney’s avowal is not evidence. It asserts that is true only as to substantive matters, but with regard to procedural matters courts can rely on attorney avowals. For example, a prosecutor’s avowals may be considered in a hearing regarding modification of release conditions; or in making an offer of proof regarding admitting evidence a trial court may rely on an attorney’s avowal of what that evidence will be. The dissent then characterizes Batson challenges as procedural, citing State v. Jackson as support, where the court of appeals accepted an attorney’s avowal as a sufficient basis to support a Batson challenge.

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State v. Gomez, No. CR-19-0292-PR (Filed March 9, 2021) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2021/CR190292PR.pdf

FACTUAL BACKGROUND

The victim was driving for Uber when defendant Gomez requested a ride. He sat in the front seat while the victim drove him to an apartment complex. According to the victim, as she was completing the trip, the defendant grabbed her waist, pulled her towards him, and restrained her. He pushed her clothes aside and began kissing her. She began scratching at him and told him to stop. He put his fingers in her vagina. She managed to push him away, lock the van doors, and drive away. He later messaged her on the Uber app, apologizing.

She drove to a gas station, where she called police. She went to the local hospital. Forensic nurses performed a sexual assault examination, collecting DNA samples from her face, neck, chest, breasts, fingernails, vagina, and external genital areas.

A DNA analyst matched Gomez’s DNA profile with samples taken from the victim’s face, neck, chest, and breast but could neither include or exclude Gomez as a contributor to the DNA under the victim’s fingernails. Using a Y-STR (short tandem repeat) technique, the analyst examined the samples from the vagina and external genitals for male DNA. DNA from the victim’s husband was found (the two had consensual sex earlier in the day) as well as a minor DNA profile consisting of two additional male alleles that were contained in Gomez’s DNA. Given there were only two markers, the analyst could not match the DNA to any particular person’s profile,but could conclude the profile was male and not the victim’s husband.

Gomez filed a motion in limine to preclude testimony about the minor Y-DNA profile. He argued the evidence was inadmissible under the Arizona Rules of Evidence 401 and 702. The trial judge, however, found that Gomez would not be prejudiced by the jury hearing the inconclusive DNA result, allowing the result to be admitted, but precluded the State from arguing that this particular result shows that Gomez’s DNA was there.

After a trial, Gomez was convicted. A divided court of appeals reversed, holding that the minor Y-DNA evidence was relevant and the analyst’s expert testimony was helpful, but ultimately concluded the minimal probative value of the evidence concerning the matching two alleles was substantially outweighed by a danger of unfair prejudice and confusion.

ISSUE

Did the trial court commit reversible error by admitting expert testimony that inconclusive DNA evidence found on the victim had two alleles also present in the defendant’s DNA profile?

HOLDING

As the evidence was not used to establish identify but to demonstrate that a man other than the victim’s husband touched the victim’s genitals, the DNA profile evidence was properly admitted.

DISCUSSION

The Court reviews a trial court’s decision whether to admit DNA evidence for an abuse of discretion and in the light most favorable to sustaining its ruling. The conditions of admission of DNA evidence and expert testimony, particularly when considering Rule 403 prejudice, are necessarily fact-specific and dependent on the context of the case; hence, why the Court defers so extensively to the discretion of the trial court.

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In this case, the DNA evidence was not used to establish identity. An essential element in determining whether sexual assault was committed was whether Gomez touched the victim’s genitals, which the State alleged and Gomez denied. Under those circumstances, DNA evidence that only established that a man other than the victim’s husband touched her genitals was probative on that issue. The trial judge circumscribed how the evidence could be presented so that it would not prejudice Gomez or confuse the jury by suggesting more than the DNA sample could demonstrate.

The court of appeals determined that the testimony regarding the two alleles found in the minor Y-DNA profile and Gomez’s DNA profile was excessively prejudicial for two reasons. First, that testing of the external genital swabs established an “inconclusive” profile, yet the analyst testified that the two alleles were consistent with Gomez’s profile in terms of their numbers and locations. And second, that the analyst could not provide statistical evidence regarding the number of people who would have had those two alleles in their profile.

This Court disagrees. The State presented the evidence as a coherent whole, establishing the sole fact that a male other than the victim’s husband had touched her genitals. The evidence was only used to exclude the victim’s husband, not to identify any possible individuals who might have left the alleles. And the Court rejects a categorical rule requiring statistical analysis as a prerequisite for presenting DNA evidence. A categorical rule that statistical probabilities are necessary to introduce DNA evidence would therefore necessarily preclude the use of inconclusive DNA evidence altogether. Other cases requiring a showing of statistical probability as a prerequisite for introducing DNA evidence involve the use of such evidence to show that it is likely that the defendant committed the crime. Here, the DNA evidence was not used to prove identity, but a fact (that a crime was committed).

The limited use of inconclusive DNA evidence to establish that a crime occurred does not raise the concerns implicated by Rule 403. Given the careful presentation of the testimony, the opportunity for cross-examination, and the State’s characterization of the testimony during closing argument, the evidence was neither unfairly prejudicial to Gomez nor confusing to the jury.

State v. Griffin, No. 2 CA-CR 2019-0264 (Filed March 2, 2021) https://www.appeals2.az.gov/decisions/CR20190264Opinion.pdf

FACTUAL BACKGROUND

¶7 Griffin was charged with fraudulent scheme and artifice pursuant to A.R.S. § 13-2310(A) and failure to register as a sex offender.

The allegation was that he had lived in one place but registered in another (as homeless) in an effort to “obtain the benefit” of not having his neighbors notified that he was an SO.

Before trial, Griffin moved to dismiss the fraudulent scheme and artifice charge, claiming that § 13-2310(A) is unconstitutionally vague and it was not the legislature’s intent for it to apply to sex offender registration. He lost that motion.

¶8 A jury found Griffin guilty of fraudulent scheme and artifice and not guilty of failure to register as a sex offender.

Griffin then filed a motion for new trial, again claiming that § 13-2310 was “improperly applied,” and the state presented insufficient evidence to sustain the conviction. Griffin claimed that he received no statutory “benefit” from the false registration.

¶10 Griffin timely appealed his conviction and sentence, and the state cross-appealed the trial court’s sentencing determination.

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ISSUES PRESENTED AND HOLDING

1. Can a person be acquitted of failure to register but yet still convicted of fraud for improperly registering? YES.

2. If the person spends time incarcerated for a later-vacated conviction, is that incarceration time still excluded when calculating historical priors? ALSO YES.

DISCUSSION

¶14 Accordingly, an individual’s failure to properly register as a sex offender by purposefully providing a false address may constitute a scheme or artifice to defraud if done with the intention to “deceive persons of ordinary prudence.” . . . As to what constitutes a “benefit,” such includes “‘anything of value or advantage,’ not merely pecuniary gain.”

¶15 Because the language of § 13-2310 does not limit the acts that may constitute a fraudulent scheme or artifice, and given the breadth of the definition of any motivating or resulting statutory benefit, we conclude that Griffin was properly charged under § 13-2310. The court also found there was sufficient evidence to uphold the conviction.

AND HERE’S THE OPINION ISSUE- THE STATE’S CROSS-APPEAL:

¶9 At sentencing, the state offered evidence of Griffin’s felony conviction in 2008 for an offense committed in 2007 as an historical prior felony conviction for sentencing enhancement purposes The trial court determined that, because a 2016 conviction, for which Griffin had been imprisoned following the 2008 conviction, had been since vacated, the period of imprisonment would not be excluded, and thus the 2008 conviction was ineligible for enhancement consideration.

¶21 The novel issue before us on appeal is whether time spent incarcerated for a later-vacated criminal conviction should be included in calculating whether an offense was committed within the required time period before the current offense.

¶28 Here, however, the phrase “any time . . . incarcerated” is not itself textually dependent upon a still-valid conviction. That is, § 13-105(22)(c) does not state “any time . . . incarcerated as a result of a conviction” or use similar language, requiring us to apply Gomez as to whether a vacated conviction remains a relevant statutory “conviction.” Instead, the statute merely refers to the fact of incarceration. Whether or not he was wrongly convicted—whether found so due to actual innocence, procedural infirmity or, as here, substantive unconstitutionality of the statute—Griffin was, nonetheless, incarcerated. The fact of that incarceration is not changed by the later vacation of the conviction. While perhaps it ought to, the language used by the legislature in the statute does not admit any judgment of the justness of that incarceration. We, thus, plainly read “[a]ny time . . . incarcerated” in § 13- 105(22)(c) to require exclusion of any time incarcerated, including time spent incarcerated as the result of a later- vacated conviction. Had the legislature intended anything else, it could have said so.

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State v. Crain, No. 1 CA-CR 19-0502 (Filed Feb. 2, 2021)

1 CA-CR 19-0502 - State v. Crain - FINAL.pdf (azcourts.gov)

FACTUAL BACKGROUND

Crain was on felony probation and one day in November 2018 his probation officer came to conduct a home visit. When his probation officer knocked a female voice asked who was there, and the PO announced herself as such—and was wearing a badge and vest with PROBATION printed on it. Crain answered the door holding an item covered by cloth of some sort and said “my F-ing cousin ain’t here.” The PO felt his demeanor was aggressive and believed the object under the cloth to be a gun based on shape and size and the way it was held. The PO was eventually able to speak to Crain and leave behind her card.

She returned to the office and told her supervisor she thought Crain pointed a gun at her. She also told her husband, a federal border patrol agent, and he called the police [which just strikes me as odd…]. Two days later when Phoenix PD executed a search warrant they found ten people in the home, as well as a handgun underneath a pile of men’s/women’s/children’s clothing and assorted papers (some of which had Crain’s name on them). DNA evidence showed a mix of DNA from four people; records tracing showed no connection between Crain and the gun.

Undeterred, MCAO proceeded with prosecution for aggravated assault—dangerous, and MIW. Crain moved to sever the counts at trial, which was denied. At trial, Crain testified in his own defense and the state impeached him with two sanitized prior felony convictions. The court also denied his Rule 20 motion at the close of the state’s case. He was convicted.

ISSUES, HOLDINGS, AND ANALYSIS

Did denial of the severance motion prejudice Crain? In this case, no. Generally MIW is one of those counts that ALWAYS gets severed for trial because of the potential for prejudice to a defendant from introduction of their felony history needed to show why they are a prohibited possessor. In this case, the court said it was error for the trial court to deny the severance motion, but there was no prejudice because Crain chose to testify and was impeached with his priors. Because evidence of prior convictions came in from impeachment, it didn’t matter that it also came in to prove an element of the MIW count. (Also, because the severance motion was not renewed during trial or at the close of evidence, the right to severance was waived and this issue was reviewed with the higher burden of review for fundamental error.) The court was unwilling to entertain argument that Crain’s decision to testify was influenced by the denial of the severance motion because there was nothing in the record to suggest that was the case.

Did the trial court err by not giving certain jury instructions sua sponte? No, the instructions at issue were not vital to the proper consideration of evidence. And again, because no objection was made at trial this was reviewed for fundamental error.

Separate-Counts Instruction – Crain argued that the court should have given this instruction to prevent the jury from confusing or conflating evidence related to one charge with the other charge, and that by failing to do so it relieved the prosecution of its burden to prove all elements of both counts among other things. The court acknowledged that the Separate-Counts Instruction would have been appropriate, but noted that the court provided separate verdict forms for each count, instructed the jury that the state must prove each element BRD, and also the State noted in closing that the proof required for each count was different. Together, those were sufficient to instruct the jury that the state had to prove each count separately.

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Mere-Presence Instruction – Crain asserted that he had no knowledge of the gun and the Mere-Presence instruction would have informed the jury how to analyze that assertion. Again, the court noted this instruction could have been appropriate, but was not necessary because of other instructions the trial court gave and because Crain argued he didn’t know it was there, but the jury found he knowingly possessed the gun which implicitly rejected his mere presence argument.

Was there prosecutorial misconduct? No, and again reviewed for fundamental error.

Burden shifting – Crain argued the State shifted the burden when it asked the jury to speculate why he didn’t call his girlfriend as a witness. A prosecutor may comment on the failure to present exculpatory evidence (except the defendant’s silence) that would substantiate the defendant’s theory. Crain’s closing argument implicated his girlfriend and it was permissible (under this standard of review, at least) for the prosecutor to comment that Crain could have offered corroborating evidence but chose not to.

Vouching – Crain argued that the State vouched for a witness by asking the jury “What motive would someone like [the PO] have to lie . . . or fabricate . . . .?” Crain asserted that the jury would then evaluate PO’s credibility not on the evidence but on the State’s assurance of reliability. The court did not feel that this statement placed the prestige of the government behind the testimony. It merely pointed out the reasonable inference that PO had no motive to lie.

Dishonest argument – Crain claimed that the State dishonestly and deliberately confused the jury by mischaracterizing text messages he sent PO the day after their encounter. Crain said he texted to provide updated contact information, but the State argued that he was texting innocuous information to “smooth things over.” The court believed this argument was a reasonable inference drawn from the evidence of their encounter.

There were also issues raised of cumulative error and lack of evidence; Refer to the opinion for those.

State v. King, No. 1 CA-CR 17-0543 (Filed February 4, 2021) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2021/1%20CA-CR%2017-0543%20PRPC%20-%20State% 20v.%20King%20-%20FINAL.pdf

FACTUAL BACKGROUND

This opinion arises out of a petition for post conviction relief regarding King’s 2002 conviction for eight counts of child abuse. In February 2001, paramedics responded to King’s apartment and found her 9 month old daughter unresponsive, limp and in respiratory distress. She had multiple significant injuries. King admitted to police that she inflicted the injuries and was charged with attempted murder and the eight counts of child abuse.

King’s attorney believed that she had mental health issues and generally understood that postpartum mothers could become depressed and harm their children. He hired a psychologist, Dr. Rosengard, to evaluate her, and she was diagnosed with major affective disorder, depression, and PTSD. The psychologist never mentioned the word “postpartum” and never discussed if she suffered any postpartum mental illness. Her attorney later hired a second pretrial postpartum expert who agreed she had no postpartum insanity defense.

King was convicted of the child abuse charges. At sentencing she offered evidence and argument that she suffered from postpartum mental illness when she committed the offenses. She personally emphasized that she suffered from postpartum depression and wasn’t prepared for its severity. She appealed her conviction and then in 2004 sought post-conviction relief. In neither proceeding did she mention postpartum depression and in her first PCR she only discussed mental health as a circumstance to support a finding that her prison sentence was grossly disproportionate to her crimes.

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In 2010, a nonprofit group hired another psychologist, Dr. Hibbert, to examine King and provide an opinion as to whether she suffered from postpartum mental illness when she abused her daughter. After records review and examination of King, Dr. Hibbert concluded that she suffered from postpartum psychosis in 2001 and criticized Dr. Rosengard’s evaluation. Dr. Hibbert expressed frustration that King was not examined with an emphasis on postpartum disorders—acknowledging, however, that the medical community had obtained a greater awareness of those disorders since 2002.

In 2012, King filed this PCR requesting a new trial because of the 2010 postpartum psychosis diagnosis that she claimed was “‘a disease that many in the medical community were not fully aware of’ in 2002 because it had ‘not yet [been] fully researched or understood.’” The state opposed and argued this was not newly discovered material evidence because information about postpartum depression and psychosis was available in 2002 and could have been discovered through reasonable diligence. It relied on multiple published decisions discussing postpartum psychosis in the 49 years prior to her trial, a dozen law reviews and legal periodicals discussing such a defense, and ten examples of coverage in the popular press between 1987 and 1997.

The PCR court held an evidentiary hearing in 2017. PCR counsel conceded that postpartum psychosis was known and diagnosed well before her trial. The newly discovered evidence was focused on “how widely known, researched, and understood the diagnostic presentation [and] symptom presentation” have become. The court of appeals indicated that King denied hallucinations in 2001, but endorsed them to the PCR court. Three medical experts testified that it would have been possible for King to obtain an accurate diagnosis in 200; with hedging that the scope of symptoms for postpartum disorders has broadened significantly since 2002 and that a “postpartum woman” is more likely to be accurately diagnosed today.

Based on the advancements in understanding postpartum psychosis that prevented King and her trial attorney from understanding or discovering her postpartum psychosis, the PCR court granted her request for a new trial. The state appealed; the court of appeals reverses the PCR court.

ANALYSIS

A new trial can be granted if newly discovered material facts probably exist, and those facts probably would have changed the judgment or sentence. To be newly discovered, a fact must have been discovered after trial or sentencing, there was an exercise of due diligence to discover it before trial, and it is material and not cumulative or solely for impeachment.

HOLDING

Based on this, the court held that her 2010 diagnosis was not newly discovered because postpartum illnesses had been long medically recognized by 2001/2002 (“for hundreds if not thousands of years prior to King’s trial . . . .”) and had been raised by other similarly charged defendants. As such, King could not meet the Bilke standard that her disorder was unknown to medical science when she was tried and convicted. The court dismissed arguments that advancements in understanding and diagnosing the disorders were sufficient to constitute newly discovered information. It emphasized that evidence does not become newly discovered simply because previously available information receives wider dissemination or acceptance, characterizing it as similar to the facts and holding of Amaral where advances in juvenile psychology and neurology were insufficient to constitute new evidence because juvenile behavioral tendencies and characteristics were known at Amaral’s trial.

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DISSENT

There is also a robust dissent that is even longer than the opinion. The dissent took significant issue with how the majority reviewed this case, accusing the majority of reweighing evidence and inventing issues that were not presented for review. If the dissent’s arguments can be distilled to one point, it is that King’s diagnosis was newly discovered evidence because even the diagnosis existed in 2001, her particularized symptoms were not recognized as part of the postpartum psychosis diagnosis until after her trial. According to the dissent, performing due diligence means doing everything reasonable, not everything possible. So when King’s attorney hired two experts to evaluate the propriety of an insanity defense he satisfied that requirement. “Measuring the mental health professionals’ lack of understanding of King’s condition at the time of trial against [King’s attorney’s] efforts, the PCR court did not abuse its discretion …”

State v Muhmmad, No. 2 CA-CR 2019-0307 (Filed January 28, 2021) https://www.appeals2.az.gov/decisions/CR20190307Opinion.pdf

FACTUAL BACKGROUND

¶1 Rahim Muhammad appeals from his convictions and sentences. He contends: (a) his waiver of a jury trial was constitutionally insufficient; and (b) the trial court erred in not sua sponte ordering a third mental competency evaluation partway through trial. For the reasons that follow, we remand on the first issue and affirm on the second.

In pretrial competency proceedings including two prescreens, two evaluations, and restoration, all five experts made similar findings- that D was symptomatic with schizophrenia and delusions but that he was exaggerating his lack of legal knowledge. The first prescreen and the two initial evaluators recommended RTC. After RTC and after a second prescreen nearly a year later, D was found competent and delusional but also malingering.

Waiver of Jury Trial

Two months prior to trial, D notified the court that he wanted a bench trial instead of a jury trial. On the first day of trial, D renewed the request and explained his reasoning. The court went through the ubiquitous colloquy, enumerated the rights that D was waiving, and established that he still wanted to do so. The court found a knowing, voluntary, and intelligent waiver of the right to jury trial. D signed the waiver form in front of the court and it was filed.

¶15 Muhammad argues that, given his mental health issues and prior competency concerns, the court in this case “needed to make a specific on-the-record finding of Muhammad’s competency to waive the jury trial.” We agree.

D argues that the court never explained the difference between a jury and bench trial- and the court says this is “flatly contradicted by the record.” D argued that the trial court should have “expand[ed] on the explanation’ or had D “explain the difference” in his own words.

¶16 In State v. Cameron, this court agreed with the appellant that “[w]here a defendant’s competency” “has been put in issue, the trial court must look further than to the usual ‘objective’ criteria in determining the adequacy of a constitutional waiver.” In such circumstances, it is not sufficient for the court to make a finding that the defendant’s waiver of a jury trial is knowing, intelligent, and voluntary. The court must also “make a specific on-the-record finding of [the defendant’s] competency to waive the jury trial.”

Importantly, a prior finding of general competency to stand trial does not suffice; “such a determination is inadequate because it does not measure the defendant’s capacity by a high enough standard.” Waiver of this constitutional right requires a degree of competency “which enables [a defendant] to make decisions of very serious import.”

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The court goes onto say that this extra finding of competency to waive a jury trial is warranted not just because D had been in competency proceedings but also because all of the experts agreed that D had a delusional disorder, three of four had found him, at one point in time, incompetent, and as part of the waiver colloquy counsel noted that D was “still hearing voices” and was not getting adequate care.

[The court relies in large part on State v. Cameron, 146 Ariz. 210 (App. 1985) and I’ve attached it here if you’re interested.]

HOLDING

The court says the trial court must make a specific finding of competence when a defendant whose “mental health is at issue” is waiving a right to a jury trial. BUT it doesn’t really say what underlying circumstances/ competence standard is or are required to support that specific finding. And the second part is equally confusing because, despite all of the factors that require this additional finding, the court was not obligated to order a new competency evaluation. It’s almost like the trial court left out the magic words and that’s what this case is remanded for.

¶23 We therefore remand to the trial court for a hearing to determine: (1) whether the court did, in fact, find that Muhammad was competent to waive his right to a jury trial; or (2) if this cannot be determined, whether Muhammad was, in fact, competent to waive that right.

Additional Competency Evaluation

¶24 Immediately after the lunch break on the first day of trial, Muhammad informed the trial court that he was experiencing “medical distress” and could not assist his counsel in proceeding with trial that day. He requested that the court break for the day and resume the trial on the next scheduled day. After allowing Muhammad to “give a brief summary of what his medical condition is,” [psychiatric symptoms, medication, lack of understanding] the court asked: “If we took a break and came back on Friday, do you think you would be feeling better by then?” Muhammad answered in the affirmative and assured the court “we’ll be able to finish on Friday.” Trial continued the next day with no further mention of the issue. D now argues for reversal because the trial court did not sua sponte order another competency assessment.

The court noted that a trial court has a “continuing duty to inquire into a defendant’s competency, and to order a Rule 11 examination sua sponte if reasonable grounds exist.” But the latter is only necessary if new facts or circumstances create a good faith doubt about the defendant’s ability to participate intelligently in the proceedings. The due process obligation of a trial court “to raise the issue and hold a hearing sua sponte” only arises “if it appears to the judge . . . that competency is in doubt.” Much of what Muhammad and his counsel stated to the court on the first day of trial had already been established in the two prior Rule 11 proceedings. Those proceedings both ultimately led to the conclusion that Muhammad was competent to stand trial.

It’s important to note here that in the first part of the opinion, the court hilites D’s apparently delusional statements during testimony as support for why, when “competence is at issue,” the court must make an additional competence determination for waiver of a jury trial. They don’t even mention the odd testimony in the second part of the opinion where they say no further competency evals are necessary.

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More things that merit further discussion:

Is there any difference between waiver of jury trial and other “constitutional” waivers?

The court says that a “finding of general competency” is not “a high enough standard” for waiver of “this” constitutional right. So two questions- why is this right different from all other rights? And what is the high enough standard? I don’t think the court answers either.

The court says that based on the particular findings in the competency evals that D’s mental health was still at issue. What the court doesn’t consider is that the reports were sealed at the conclusion of competency litigation. Does this additional inquiry at this point in proceedings violate provisions in 13-4508?

Since D didn’t object at trial to the lack of a specific finding, this amounts to fundamental error? Given that, is the remand remedy sufficient?

Is there really a difference between competence to stand trial and competence to waive rights? Almost every post-Rule 11 adjudication involves some waiver of rights.

State v. Mixton, No. CR-19-0276-PR (Filed January 11, 2021)

CR190276PR-.pdf (azcourts.gov)

FACTUAL BACKGROUND

This opinion begins by defining and describing the technology at issue. An Internet Service Provider (ISP) provides individuals with access to the internet (in Maricopa County, the two main ISPs are Cox and Century Link). The ISP assigns each customer’s modem a string of numbers, called an Internet Protocol (IP) address, to facilitate access to the internet. An internet user does not control or own an IP address. IP addresses are attached to any information exchanged back and forth by computers actively communicating with each other over the Internet. When a computer accesses a website, the IP address instructs that website where to send data. Search engines log IP addresses of users to improve the quality of search results and to advertise to visitors. Alone, the IP address does not provide someone’s identity. An IP address merely points to a user’s approximate geographic neighborhood and ISP. The ISP, however, maintains records of its users, such as name, address, and telephone number—“subscriber information.”

In 2016, an undercover Tucson PD detective posted an ad in a forum seeking users interested in child pornography. A user by the name of “tabooin520” contacted the detective and asked to be added on Kik (messaging application). Once added into a chat on Kik, the user sent images and videos of child pornography to the detective. Federal agents with Homeland Security Investigations, at the request of the detective, served a federal administrative subpoena under federal law on Kik to obtain the user’s IP address. Kik provided the IP address. Using publicly available information, the detective determined the IP address was issued by Cox. Again, the federal agents served a federal administrative subpoena on Cox for the subscriber information associated with the IP address. Cox disclosed the subscriber information for William Mixton. Detectives used this information to obtain and execute a search warrant on Mixon’s home. A cell phone, external hard drive, laptop, and desktop computer were seized. During a subsequent search, law enforcement discovered photos and videos of child pornography, as well as the messages, photos, and videos that Mixton, under the username, sent to the detective.

Mixton was indicted for twenty counts of sexual exploitation of a minor under fifteen years of age. He moved unsuccessfully to suppress the subscriber information and all evidence seized from his residence. A jury convicted Mixton of all counts and he appealed.

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In a split decision on appeal, the court of appeals affirmed Mixton’s convictions and sentences, holding that although Mixton lacked a reasonable expectation of privacy under the Fourth Amendment, the Arizona Constitution required a search warrant to obtain Mixton’s ISP subscriber information and the federal third-party doctrine did not apply to the Arizona Constitution. And although the State obtained Mixton’s ISP subscriber information in violation of he Arizona Constitution, suppression of the information was unnecessary under the good-faith exception to the exclusionary rule.

ISSUES PRESENTED

Does the Fourth Amendment of the United States Constitution or article 2, section 8 of the Arizona Constitution require law enforcement to attain a judicially authorized search warrant or court order to obtain either an IP address or ISP subscriber information?

HOLDINGS

The Fourth Amendment does not require a search warrant or court order for law enforcement to obtain IP address or ISP subscriber information.

The Private Affairs Clause of the Arizona Constitution (Ariz. Const. art. 2, section 8) does not require a warrant or order to obtain IP address or ISP subscriber information.

Mixton did not have a reasonable expectation of privacy in his IP address and ISP subscriber information. Law enforcement officials may obtain IP addresses and ISP subscriber information with a lawful federal administrative subpoena.

DISCUSSION

Does the Fourth Amendment require a search warrant or court order to obtain IP address or ISP subscriber information, in light of Carpenter?

Prior to Carpenter, federal appellate courts held uniformly that the Fourth Amendment does not protect IP addresses and ISP subscriber information because this information falls within the “third-party doctrine” exception. Like the bank records and dialed telephone records in Smith and Katz, an internet user voluntarily provides subscriber information and IP addresses to third-party ISPs and servers. And following Carpenter, every federal appellate court addressing the issue has affirmed that the Fourth Amendment’s warrant requirement does not reach IP addresses and ISP subscriber information. This Court declines to hold that IP addresses and ISP information fall within Carpenter’s exception to the third-party doctrine.

Does article 2, section 8 of the Arizona Constitution require a search warrant or court order to obtain IP address or ISP subscriber information?

The Court acknowledges that the Court does not have to follow Fourth Amendment jurisprudence when interpreting the State constitution and that the Arizona Constitution is even more explicit than its federal counterpart in safeguarding the rights of Arizona citizens. The Court, however, also recognizes the value of uniformity with federal law when interpreting and applying the Arizona Constitution.

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“Private affairs” is not defined in the Arizona Constitution. The Court looks to the dictionaries from around the adoption of the Arizona Constitution to discern the definition of “private affairs.” Also considered in the history of the passage of this section of the Arizona Constitution. “And although the constitutional convention record is silent on the intent of the Private Affairs Clause, it details several delegates’ objections to extending state constitutional protections in other contexts beyond those recognized under the federal Constitution at the time.” And thus, the Court finds that the Arizona’s constitutional record does not support the conclusion that the Private Affairs Clause protects such information and thus, forecloses the State’s warrantless access to it.

The Court does not discern the scope of the Private Affairs Clause in a vacuum, but rather the Court applies the “reasonable expectation of privacy test” to determine its protection. The Private Affairs Clause protects a privacy interest in an IP address and ISP subscriber information only if society is prepared to accept such an expectation of privacy as reasonable or, stated differently, if the nature and use of the information is consistent with what is reasonably conceived as being private. And given the current state of information disclosure on the Internet and pervasive Internet use, it is “hard to believe” that anyone still retains an antiquated notion of anonymity in their internet use. Federal and state consensus, finding no privacy interest in IP addresses and ISP subscriber information, affirms their jurisdiction’s popular consensus on the lack of privacy interest.

The Court disagrees about the dissent’s proposed framework (see below) and argues that even if the Court adopted the dissent’s framework, IP addresses and ISP subscriber information would not be considered private under the framework. This is because IP addresses are considered “non-content information” and the Court highlights that this holding (and the third-party doctrine) apply only to non-content information.

And while other jurisdictions have rejected the application of the third-party doctrine under state constitutional grounds, other state courts have applied the third-party doctrine or similar reasoning under their respective constitutions. Although the dissent focuses on Washington state court jurisprudence, the Court distinguishes two of the main cases relied upon by the dissent. Even when applying the Washington courts’ approach, the “Private Affairs” clause does not require a warrant or court order to obtain an IP address or ISP subscriber information.

Anonymous speech will also not be eradicated by this decision. Anonymous speech is not implicated in this case because the defendant did not endeavor to elude identification, no one has a right to speak anonymously when distributing illicit material, and the lengths one needs to take to be anonymous on the Internet are “exaggerated” by the dissent.

The specter of official misuse of the non-content fruits of federal administrative subpoenas is highly speculative and beyond the facts presented. The scope of a federal administrative subpoena is not subject to abuse because it only allows an agency district director or special agent to obtain the IP address or ISP information based on an articulable belief that the information is relevant to a child-exploitation crime. And it is “illogical” to condition the constitutionality of an otherwise lawful compulsory process based on speculation that it may be abused.

Because the Court holds that the IP address and ISP subscriber information does not qualify for protection, the Court need not consider whether the Arizona Constitution’s “lawful authority” requirement is necessarily limited to a search warrant, nor will the Court consider the state’s good faith exception argument.

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DISSENT (Bolick, J., joined by Brutinel, C.J and Timmer, V.C.J.)

“We are now in the second century of Arizona statehood, yet this is the first time the Court has given more than cursory consideration to the meaning of the private affairs clause of article 2, section 8 of the Arizona Constitution. That provision has no analogue in the federal constitution and was clearly intended to provide additional and forceful protections to Arizonans against government intrusions into their private affairs. Because the majority interprets the private affairs clause in lockstep with the less protective Fourth Amendment as construed by the United States Supreme Court, thereby draining the meaning expressed in the clause and intended by its architects, we respectfully dissent.” Id. at 29.

Arizona’s constitutional framers had over a century to reflect on the United States Constitution. If they intended to adopt the same constitution, the framers could have chosen just to duplicate the United States Constitution. The federal constitution is the baseline for the protection of individual rights, but states are free to provide greater protection through their state constitutions. Only two states—Arizona and Washington—deliberately chose to depart from the Fourth Amendment in favor of a distinct provision encompassing a protection for private affairs.

By rejecting the Fourth Amendment’s language in Arizona’s Constitution, Arizona’s framers changed existing law that mirrored the Fourth Amendment. The framers chose a broader, express privacy provision in article 2, section 8. Because the incorporation doctrine had not yet applied the Fourth Amendment to the states, the framers would have used this provision as the solitary protection for individual liberty against the State. This court has frequently interpreted provisions of the state constitution more broadly than their federal counterparts, especially when the language is different.

“These cases, juxtaposed against the Court’s decision today, leave us in a curious and perplexing place. On the one hand, this Court has construed the home invasion provision of article 2, section 8 more broadly than the Fourth Amendment and has rejected Supreme Court doctrines inconsistent with that clause, even though both provisions protect homes. By contrast, the majority here subsumes the private affairs clause within the Supreme Court’s interpretation of the Fourth Amendment, even though the Fourth Amendment does not on its face protect against government intrusions into private affairs.” Id. at 35.

Further, a fair independent reading of the text and intent of article 2, section 8, shows that the protection of private affairs is incompatible with the Fourth Amendment third-party doctrine. The dissent quotes the dictionary and examples from the time period to show that the “private affairs” protection should be much broader than protections provided under the Fourth Amendment. The dissent recommends an analytical framework wherein we ask two questions: (1) whether the search encompasses intimate details of a person’s life, and (2) whether the disclosure of information was made for a limited purpose and not for release to other persons for other reasons. If those two criteria are met, the information is a private affair and the government may obtain it only with authority of law.

Under the dissent’s interpretation of the “private affairs” protections, IP addresses and ISP subscriber protections would both be protected. “The notion that anything one must share for purposes of voluntary transactions is thereby subject to government inspection would eviscerate any meaningful notion of privacy.” The dissent reviews several state Supreme Court opinions that departed from the third-party doctrine.

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State v Ainsworth, No. 2 CA-CR 2020-0158-PR (Filed January 7, 2021)

CR20200158Opinion.pdf (az.gov)

This one is deep into PCR rights. The bottom line seems to be that because there are no appeal rights, after sentencing on a plea, counsel does not have a duty of continuing representation under Rule 6.3(b) and does not have a duty to inquire if a defendant wants to seek post-conviction relief or file that notice on his behalf. Instead, the duty is on the defendant to “contact a lawyer” and ask that a notice of PCR be filed. Seems like the court has totally ignored the language in 6.3(b) that says absent permission to withdraw, counsel has a continuing duty of representation in all further proceedings in the trial court. And who’s the lawyer D is supposed to contact if not his trial counsel?

¶2 After plea and sentencing, Ainsworth signed his notice of post-conviction relief rights explaining that he was required to file a notice “within 90 days of the entry of judgment and sentence” and that “to file a notice of post- conviction relief, you should contact a lawyer . . . telling him or her that you want to seek post-conviction relief.” Ten months later, he asked for appointment of counsel and filed a notice of PCR arguing that he’d received ineffective assistance and that his plea was not knowing, voluntary, and intelligent. He also sought relief under Rule 32.1(e) arguing that he had newly discovered information and material facts showing that previous counsel had coerced his plea. The trial court denied Ainsworth’s request for counsel and summarily dismissed the petition, concluding that Ainsworth had not established he was without fault for the late filing of his notice and that the remainder of his claims were either untimely or without merit.

¶4 Recent amendments to the PCR rules apply to all cases pending as of the effective date (January 1, 2020) unless the court determines that “applying the rule or amendment would be infeasible or work an injustice.” The state concedes that the amendments should not apply to Ainsworth because he “might have been entitled to appointment of counsel below under former Rule 32.4(b)(2), but would not be entitled under [new] Rule 33.5 (a).” The state argues, however, that Ainsworth’s notice was “facially non-meritorious” and that the trial court therefore properly declined to appoint counsel, even under former Rule 32.4(b)(2).

¶6 We therefore must decide whether the trial court properly dismissed Ainsworth’s notice as inexcusably untimely and non-meritorious under former Rule 32.2(b). Ainsworth argues the trial court abused its discretion because it “ignored” his argument that his trial counsel had a “duty of continuing representation” under Rule 6.3(b), Ariz. R. Crim. P. He contends that the court should not have denied him relief under Rule 32.1(f) and, therefore, that the remainder of its ruling was also incorrect. We disagree.

Ainsworth asserted in his petition that trial counsel had not filed a notice on his behalf and had not “even inquire[d] if he desired to seek” post-conviction relief. But the notice of post-conviction rights that Ainsworth signed explained he “should contact a lawyer” to tell him or her that he wished to seek post-conviction relief. Apparently, he did not do so.

¶8 Despite these warnings, however, Ainsworth contends his trial counsel was required to a file a notice of post- conviction relief based on Rule 6.3(b). Rule 6.3(b) provides that, unless permitted to withdraw, “counsel who represents a defendant at any stage of a case has a continuing duty to represent the defendant in all further proceedings in the trial court, including the filing of a notice of appeal.” Id. But, as a pleading defendant, Ainsworth expressly waived his right to appeal. And, although proceedings for post-conviction relief are analogous to an appeal for some purposes, Ainsworth has cited no authority to suggest that Rule 6.3(b)’s requirements extend to the filing of a notice of post-conviction relief. The trial court therefore did not abuse its discretion in concluding Ainsworth’s claim pursuant to Rule 32.1(f) was facially non-meritorious without first appointing him counsel.

¶10 And finally, although, as Ainsworth suggests, a claim of newly discovered evidence could be raised in an untimely proceeding under former Rule 32.4(a)(2)(A), Ainsworth’s claim of newly discovered evidence was instead the assertion of a newly discovered legal claim, which is not cognizable under that rule.

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TRIAL RESULTS Jury and Court Trial Results January 2021— March 2021

CLOSED ATTORNEY JUDGE CHARGE NO. OF RESULT CO-COUNSEL COUNTS INVESTIGATOR PARALEGAL MITIGATION

JUSTICE COURTS (PUBLIC DEFENDER)

3/3/2021 B. GRIFFIN RAVINSKI TR2020-105120-001 JURY TRIAL – DUI M1 4 GUILTY ON LESSER/ DUI-LIQUOR IN VEHICLE, M1 1 FEWER

TRIAL GROUP B (PUBLIC DEFENDER)

1/27/2021 K. GIPSON- FOX CR2020-114041-001 JURY TRIAL – MCLEAN AGG ASLT -DV STRANGULATION, F4 2 GUILTY LESSER/ ASSAULT DV,, M1 1 FEWER

2/1/2021 J. YANKOVICH HOPKINS CR2017-150971-001 JURY TRIAL - E. WOLKOWICZ MURDER, FIRST DEGREE, F1 1 GUILTY AS T. ACORDA CHARGED C. COLE D. JIM

2/19/2021 J. RAEL FOX CR2019-152842-001 JURY TRIAL - T. ACORDA AGG ASLT-OFFICER, F4 1 GUILTY AS CHARGED 3/11/2021 B. THREDGOLD GAR- CR2018-005540-001 JURY TRIAL - V. SMITH FINKEL KIDNAP-DEATH/INJ/SEX/AID FEL, F2 1 GUILTY AS M. SALIDO SEXUAL CONDUCT WITH MINOR, F2 2 CHARGED C. SLINGBAUM SEXUAL CONDUCT WITH MINOR, F2 2 R. MENENDEZ SEXUAL ABUSE, F3 1 SEXUAL ABUSE, F5 2 SEXUAL ABUSE, F5 2 SEXUAL ASSAULT, 1

3/10/2021 K. MCFARLAND MANDELL CR2020-112784-001 COURT TRIAL - A. MOLINA- THREAT-INTIMIDATE, F6 1 GUILTY LESSER/ CURIEL FEWER A. HERTENSTEIN

TRIAL GROUP C (PUBLIC DEFENDER)

1/13/2021 J. GATTERMEYER COOPER CR2019-005369-001 JURY TRIAL - J. ROBERTS POSS WPN BY PROHIB PERSON, F4 1 NOT GUILTY

3/15/2021 S. MCLAUGHLIN BLAIR CR2019-127123-001 COURT TRIAL - J. CASEY RESIST ARREST-PHYSICAL FORCE, F6 1 GUILTY LESSER/ C. PETERSON DISORDERLY CONDUCT-FIGHTING, M1 1 FEWER D. ONTAI

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CLOSED ATTORNEY JUDGE CHARGE NO. OF RESULT CO-COUNSEL COUNTS INVESTIGATOR PARALEGAL MITIGATION

LEGAL DEFENDER

1/15/2021 T. GARRISON COHEN CR2018-106340-001 JURY TRIAL - R. SHIPMAN MURDER 1ST DEG-DURING CRIME, F1 1 GUILTY AS F. RANGEL CHARGED G. HANDGIS G. CRUZ-BERNAL

DEPENDENCY TRIAL RESULTS (LEGAL ADVOCATE)

CLOSED TEAM JUDGE JD# DEP OR SEV TRIAL RESULTS

1/12/2021 C. HERZHAFT LANG JD35764 SEV GRANTED V. WILLIAMS

1/26/2021 M. VERA CUNANAN JD39475 DEP DISMISSED A. ELWOOD

1/29/2021 L. CHRISTIAN UDALL JD533509 DEP FOUND L. CHRISTENSEN

2/8/2021 M. VERA CUNANAN JD36702 DEP GRANTED A. ELWOOD

2/18/2021 R. MOSKOWITZ RUETER JD532279 SEV GRANTED A. CASSIDY

2/22/2021 R. MOSKOWITZ CULBERTSON JD530301 SEV GRANTED A. CASSIDY

3/24/2021 L. RICHARDSON GORDAN JD38519 SEV GRANTED R. JENKINS

3/4/2021 C. HERZHAFT LANG JD17670 SEV GRANTED V. WILLIAMS

3/8/2021 M. VERA CUNANAN JD40258 DEP FOUND A. ELWOOD

3/8/2021 L. CHRISTIAN GREEN JD529469 DEP FOUND L. CHRISTENSEN

3/8/2021 L. CHRISTIAN GREEN JD506885 DEP FOUND L. CHRISTENSEN

3/23/2021 M. VERA CUNANAN JS20718 SEV GRANTED A. ELWOOD

3/30/2021 C. HERZHAFT LANG JD14946 DEP FOUND V. WILLIAMS

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A publication of the Maricopa County Public Defender’s Office Delivering America’s Promise of Justice for All

Editors Stephanie Conlon Sierra Taylor

Assistant Editor Corey Smith

Office 620 West Jackson St., Suite 4015 Phoenix, AZ 85003 p: 602.506.7711 f: 602.372.8902 [email protected]

for THE DEFENSE is the training newsletter published by the Maricopa County Public Defender’s Office, Gary Kula, Director

for THE DEFENSE

Volume 30, Issue 4 Maricopa County Public Defender Newsletter January, 2021 Abolishing Slavery and Prison Privatization In This Issue: By Claire Tomko, Defender Law Clerk

Abolish Private Prisons (APP), a non-profit public interest law firm based Abolishing Private Prisons in Phoenix, recently filed their first lawsuit in Federal court to challenge By Claire Tomko the constitutionality of prison privatization. Defender Attorney Page 1

APP’s recent filings may be accessed at https://www.abolishprivateprisons.org/nielsen-v-shinn. Bail Hearings This article provides a summary of the issues they are challenging. By Caleigh Milton and Meghan White, Mass Incarceration Defender Attorneys Page 5 The United States has the highest rates of incarceration of any country, making up just 5% of the world’s population, but 25% of the world’s prisoners. Maricopa County Public Defender 2020 Awards Private prisons play a key role in this disturbing data point. A private By Laura Hagen prison is one that is privately-owned and operated or is leased by a Business Systems Analyst private for-profit corporation that has total operational control over day Page 10 all day-to-day decisions. Private prisons contract with federal and state prison bureaus, Immigration and Customs Enforcement (ICE), and local governments to carry out the functions of incarceration and initial Opinion Summaries discipline that would have otherwise been done by the government.1 October through December, 2020 Page 13

A United States Department of Justice study found that the number of prisoners in private facilities went from 7,771 in 1990 to 129,336 in 2009, a 1,664% increase. While private prisons represent around 10% Trial Results of the incarcerated population nationwide, their outsized growth is October through December, 2020 alarming. Page 26

The policies of the purported war on drugs, not a change in the crime rate, fueled the rise in prison privatization. At the start of these policies Upcoming Events in the early 1980’s, 780,000 people were incarcerated nationwide. Page 28 By 1997, 1.7 million people were incarcerated. By 2015, 2.3 million people were incarcerated, and another 4 million were on probation or parole. It is important to note that people in immigration detention are not included in these numbers, although about 70% of them are also detained in private prisons. This dramatic increase in incarceration has a disparate impact on racial minorities, specifically Black and Hispanic men and women, the mentally ill, poor, addicted, homeless, and immigrants.

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As the number of prisoners increased so did the cost of operating prisons. In 1980, prison operations cost around $3 million; by 1994, the cost had increased to over $17 million. The overcrowding that resulted from this massive increase in prisoners and operation costs led the government to contract with private prisons, who promised a better, more cost-effective solution. Several government studies, however, have been unable to determine whether prison privatization in fact saves taxpayers money. Additionally, a DOJ Office of the Inspector General report in 2016 found that private prisons had more safety and security incidents, and other reports have revealed that issues like overcrowding are still present.

In addition to lucrative government contracts—paid with tax dollars—the private prisons also make an enormous profit through charging a daily fee per bed filled, commonly called a man-day. Core Civic, The GEO Group, and MTC are the largest private prison corporations in the United States, representing over 90% of the private beds in jails and prisons nationwide. While MTC is a private company, Core Civic and the GEO Group are publicly traded. From 2010 to 2015, Core Civic made between $2,000 to $4,000 profit per prisoner annually, and in 2015 profited $222 million. The GEO Group made between $1,400 to $2,400 per prisoner annually during that same time, in 2015 profited $139 million. As publicly traded businesses, their stock value rises and falls with their profitability. The profit motive, along with the occupancy guarantees often found in government contracts, incentivizes mass incarceration.

Slavery Under the Thirteenth Amendment2

Abolish Private Prisons (APP) is currently arguing in the United States District Court that prison privatization violates the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. Specifically, APP is arguing that incarcerating people for profit is a form of slavery and asking the court to abolish the unconstitutional practice.

Unlike previous challenges to private prisons, this argument does not focus on the issue of forced labor as punishment, but on the mere act of being held for the financial benefit of another. This requires a reading of the Punishment Clause as applying only to involuntary servitude, not to slavery. Recently, U.S. Senator Jeff Merkley and U.S. Representative William Lacy Clay proposed an amendment to strike the Punishment Clause entirely. A press release from Senator Merkley explained the need for the amendment:

“The Abolition Amendment would finally finish the job started by the Civil War, Emancipation Proclamation, and 13th Amendment and end the morally reprehensible practice of slavery and forced labor in America, and send a clear message: in this country, no person will be stripped of their basic humanity and forced to toil for someone else’s profit.”3

This reading is further supported by Justice Harlan’s dissent in Robertson v. Baldwin, 165 U.S. 275 (1987). There, several sailors had signed on to work on a private vessel, but later refused to continue to work. The captain of the vessel had them arrested for violating employment agreement. In response, the sailors sued the captain under the Thirteenth Amendment. The Court refused to apply the Thirteenth Amendment due to the application of maritime law predating the amendment, and ultimately ordered the sailors into the custody and control of the captain, a private merchant. In his dissent, Justice Harlan dismisses of the maritime law issue entirely and pointedly writes that while there is an exception for involuntary servitude under the Thirteenth Amendment, the prohibition on slavery is absolute.

Given the use of prisoners as property off which to make a profit, private for-profit prisons are arguably involved in slavery, which is prohibited without exception under the Thirteenth Amendment.

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Due Process Under the Fifth and Fourteenth Amendments

Procedural Due Process, triggered by a liberty interest, is a fact-intensive inquiry into the fairness of the procedures in place and requires a balancing of interests between the parties. Previously, a person had no liberty interest in who the jailer is. Recently, however, in Wilkinson v. Austin, 545 U.S. 209 (2005), the Supreme Court did find a liberty interest where an inmate objected to his transfer to a public supermax facility. There, the conditions in the supermax prison were so poor and different that there was a fundamental difference that triggered a liberty interest. The balancing test requires a balancing of the importance of the liberty interest, the interests of the government, and the cost of adequate protection of the liberty interest. When the jailer is a private for-profit prison, like in the supermax facility, the prison is fundamentally different than a state or Federal prison because of the profit motive attached to the operation of the prison. There are additional procedural Due Process concerns when the adjudicator has a financial interest at stake, such as in Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009).

The rationale applied in Obergefell v. Hodges, 576 U.S. 644 (2015), also may be applied to arguments against prison privatization. The Obergefell analysis as applied to the private prison system involves consideration of the history of slavery, the liberty interest in not being treated as an enslaved person, the immorality of slavery, and ultimately, the fairness of the private prison system. Obergefell asked whether prohibition of same-sex marriage was in the spirit of the Constitution and decided it was not. Slavery is not within the text or spirit of the Constitution, and prison privatization is likewise not.

Executive Order to Phase Out the Federal Government’s Reliance on Privately Operated Prisons

In a move toward significant progress, President Biden signed an executive order on January 26, 2021, ordering that the Department of Justice shall not renew contracts with privately operated criminal detention facilities. The executive order states:

Section 1. Policy.

More than two million people are currently incarcerated in the United States, including a disproportionate number of people of color. There is broad consensus that our current system of mass incarceration imposes significant costs and hardships on our society and communities and does not make us safer. To decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities.

We must ensure that our Nation’s incarceration and correctional systems are prioritizing rehabilitation and redemption. Incarcerated individuals should be given a fair chance to fully reintegrate into their communities, including by participating in programming tailored to earning a good living, securing affordable housing, and participating in our democracy as our fellow citizens. However, privately operated criminal detention facilities consistently underperform Federal facilities with respect to correctional services, programs, and resources. We should ensure that time in prison prepares individuals for the next chapter of their lives.

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Sec. 2. Contracts with Privately Operated Criminal Detention Facilities.

The Attorney General shall not renew Department of Justice contracts with privately operated criminal detention facilities, as consistent with applicable law.

Sec. 3. General Provisions.

(a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Prison Privatization in Arizona

Arizona ranks in the top five states with the highest rates of both incarcerated persons and the percentage of people we send to private, for profit prisons. Alarmingly, while the nation’s incarceration rate decreased by 11% from 2006 to 2016, Arizona’s rate increased by 6%. Arizona Department of Corrections’ budget has risen steadily along with its prisoner population, despite outpacing the state’s population growth. Ultimately, tax dollars are used to contract with for-profit companies to support a system of mass incarceration instead of being used to benefit the state.

The Arizona Department of Corrections, Rehabilitation and Reentry (ADCRR) contracts with the three major private for-profit prison corporations that have total operational control and make a profit from construction of prison facilities and providing medical, communication, food, and laundry services. This creates a powerful corporate interest in sustaining mass incarceration. In Arizona, private prisons control placement of prisoners and make immediate, initial day-to-day decisions on inmate discipline, although ADCRR retains final authority on disciplinary decisions.

Despite claiming otherwise private prisons achieve their goals by lobbying legislators and contributing to proposed legislation. An NPR report in 2010 revealed that here in Arizona, a member of the private prison industry had helped draft Senate Bill 1070.4

Creating a system where corporate profits are pitted directly against individual liberty is unconstitutional and must be abolished. Arizona and other states should follow the federal government’s lead and abolish private prisons. ______

1 Arizona DOC’s agreements are discussed in A.R.S. § 41-1609 et seq.

2 See Robert Craig’s op-ed for a more detailed history of slavery in the United States. From Slavery To War On Drugs: A History of State-Sponsored Subjugation, AZ Informant (Aug. 14, 2019), https://azinformant.com/from-slavery-to-war-on- drugsa-history-of-state-sponsored-subjugation/.

3 Merkley, Clay propose constitutional amendment to close slavery loophole in 13th Amendment, Press Release, Dec. 2, 2020, https://www.merkley.senate.gov/news/press-releases/merkley-clay-propose-constitutional-amendment-to-close-slavery- loophole-in-13th-amendment-2020.

4 See How For-Profit Prisons Have Become the Biggest Lobby No One Is Talking About, WASH. POST (Apr. 28, 2015), https:// www.washingtonpost.com/posteverything/wp/2015/04/28/how-for-profit-prisons-have-become-the-biggest-lobby-no-one-is- talking-about/; Prison Economics Help Drive Ariz. Immigration Law, NPR (Oct. 28, 2010), https:// www.npr.org/2010/10/28/130833741/prison-economics-help-drive-ariz-immigration-law.

for THE DEFENSE January 2021 Volume 30, Issue 4, Pg. 5 Bail Eligibility Hearings By Caleigh Milton and Meghan White, Defender Attorneys

The Law on Bail

The Arizona Constitution theoretically guarantees that “all persons charged with a crime shall be bailable by sufficient sureties.” Art. 2 § 22. Defense attorneys have a significant role to play in ensuring this protection is secured because, in some instances, it is not. In order to clarify the constraints of the law and how we may best serve our clients, it benefits us to examine the practicalities of how bail is applied in Maricopa County.

Bail has three primary purposes. Bail is set primarily to secure the appearance of the accused. Art. 2 § 22(B)(1) The second purpose is to protect against witness intimidation. Art. 2 § 22(B)(2). The third is to protect the safety of victims and the community. Art. 2 § 22(B)(3). The conditions of release are supposed to be the least onerous conditions possible to reasonably assure appearance. Ariz. R. Crim. P. 7.2. To that end, certain guidelines and modifications have been implemented that curtail the right to bail.

The Bail Reform Act (The Act) of 1984 codified the procedures for judges to follow when making determinations as to release on bail pending trial, sentencing, and appeal. The Act provides arrestees with procedural rights including the right to request counsel, to present witnesses, to proffer evidence and to cross-examine witnesses. 18 U.S.C.A. § 3142. The Act specifies factors to be considered by a judge in making a determination on bail. A judge must review the nature and seriousness of the charges, the substantiality of the Government's evidence, the arrestee's background and characteristics, and the nature and seriousness of the danger posed by his release. 18 U.S.C.A. § 3142 (g). The Act also requires written findings of fact and a statement of reasoning. 18 U.S.C.A. § 3142 (i). In addition, these written findings must be supported with clear and convincing evidence. 18 U.S.C.A. § 3142 (f).

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Although the Arizona Constitution ostensibly guarantees bail, there are exceptions to this general rule. In the context of sex related offenses, those who are charged with any one of three sex crimes are to be held without bail if there is proof evident or presumption great that they are guilty of the offense charged. A.R.S. § 13-3961.1 A charge of sexual conduct with a minor when the accused is over 18 and the victim is under 13 or when the accused is at least 10 years older than a victim under the age of 13 can render a person non-bailable under Arizona Statutes. A.R.S. § 13- 3961. The same is true for a person accused of molestation of a child (1) if the accused was over 18 and the victim was under the age of 13 or (2) if the accused was at least 10 years older than a victim under the age of 13. A.R.S. § 13-3961. Finally, those charged with sexual assault are also at risk of being held without bond. Id.

The Case Law

Much of the favorable case law on the right to bail stems from United States v. Salerno, a 1987 mob case out of New York. 481 U.S. 739 (1987). Anthony Salerno, more commonly known as “Fat Tony” was the underboss of the Genovese crime family in New York. Although it was ultimately discovered that he was a front for the real boss, Vincent “the Chin” Gigante, Salerno was America’s top gangster in power, wealth and influence according to Fortune Magazine. This made Salerno the lead defendant in the Mafia Commission trial that would ultimately deal a significant blow to organized crime in New York. After a proffer of evidence from the Government that Salerno personally participated in two murder conspiracies and had participated in wide-ranging violent conspiracies to aid the illegal enterprises of the Genoveses, the District Court found Salerno to be a danger to specific people as well as to the community and held him without bond. Id. at 743. The United States Supreme Court ultimately agreed with the denial of bond but only after concluding that “in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Id. at 755. In the opinion, the Court reinforced the need for numerous procedural safeguards that must attend every hearing on the denial of bond. Id.

In the context of categorical denial of bail in Arizona, the procedural safeguards put in place post-Salerno require a hearing at the initial appearance or within 24 hours of the initial appearance if the State intends to argue for no bail. A.R.S. §13-3961(E). There, the State must prove by clear and convincing evidence that the defendant poses a substantial danger to another person or to the community and that there is no condition or combination of conditions of release that would reasonably assure the safety of either. §13-3961(D). The State must also show by proof evident and presumption great that the defendant committed a charged offense that would justify their being held without bail. §13-3961(D). But despite these procedural safeguards, even decades after the Salerno decision, defendants in Maricopa County were being denied bail based on prosecutorial avowals alone, and more importantly, defendants were not permitted to challenge the allegations through any meaningful process. Simpson v. Owens, 207 Ariz. 261, 265 (Ct. App. 2004).

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One such defendant, Jason Simpson Sr., filed a special action claiming that he was entitled to a “full and adversarial bail hearing.” Id. at 263. The Court of Appeals found that there is a presumption of liberty and ruled in favor of granting Mr. Simpson bail. As a result, more procedural safeguards were added to the process. Id. at 270. Specifically, submitting the indictment alone as proof evident or presumption great, that an accused committed the charged crime is no longer sufficient. Id. at 276. Neither is a prosecutor’s avowal as to the State’s evidence enough to hold a defendant without bond. Id. Similarly, simply submitting a grand jury transcript does not meet the proof evident presumption great standard. Id. Following the Simpson I ruling, at a minimum, Due Process requires that a full and adversarial evidentiary hearing be held. This effectively puts the burden back on the State and reinforces a defendant’s right to assistance of counsel, to cross examine witnesses and to review, in advance of the hearing, any written statements of the witnesses. Id. at 265.

In doing all of this work, the Court attempted to clarify the meaning of proof evident presumption great, saying, “The State’s burden is met if all of the evidence, fully considered by the court, makes it plain and clear to the understanding, and satisfactory and apparent to the well- guarded dispassionate judgment of the court that the accused committed one of the offenses…” Id. at 274. In the end, this opinion managed only to make it clear that the burden is higher than probable cause and did not go far enough to truly clarify the burden the State must meet before a defendant can be held without bail.

The Court also muddied the waters by rejecting Simpson’s argument that Courts must also determine whether there is compelling evidence that the accused is a flight risk or a risk to recidivate. This holding was inconsistent with the requirements of A.R.S.§13-3961(D), in particular with regard to violent offenses. Based on the ruling in Simpson I, the Court began a new process wherein a bail eligibility hearing would be set within seven days of the filing of a motion requesting one. These were adversarial hearings with counsel present. Witnesses were called and cross- examined. These modifications corrected some of the previously disregarded rights of defendants. Courts were only looking at the evidence in the case at these initial Simpson hearings. They were not yet making an individualized determination of risk as to each defendant.

At Joe Martinez’ evidentiary hearing, the court concluded that the proof was evident or the presumption great that he committed sex conduct with a minor under fifteen, rendering him ineligible for bail.2 Simpson v. Miller, 241 Ariz. 341, 344 (2017). In this case, Simpson v. Miller, the Court focused on future dangerousness. Id. at 349. This opinion revisits Salerno and notes that it was the individualized determination of Mr. Salerno’s future dangerousness that permitted holding him without bail concluding that, “The state may deny bail categorically for crimes that inherently demonstrate future dangerousness, when the proof is evident or presumption great that the defendant committed the crime. What it may not do, consistent with due process, is deny bail categorically for those accused of crimes that do not inherently predict future dangerousness.” Id. Ultimately the Court held that sex conduct with a minor is not necessarily a proxy for dangerousness so there must be an individualized determination. Id. This shifted the focus to the concept of predicting future dangerousness.

Now, before a person can be held without bond, findings must be made that: 1. There is proof evident or presumption great that the person committed offense; AND 2. There is clear and convincing evidence that: • The defendant poses a substantial danger to another person/community AND • No condition(s) will reasonably assure the safety of the other person or community

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After the ruling in Simpson I and Simpson II, there was still ambiguity as to whether the individualized determination as to dangerousness applied only to Sex Conduct with a Minor or if it extended to Molestation of a Child and Sexual Assault. Although Simpson II was a rejection of the categorical denial of bail, it did not specifically address other types of non-bondable offenses.

In Chantry v. Astrowsky, the Court found that molestation of a person under fifteen is a lesser included of Sex Con- duct with a person under 15. 242 Ariz. 355, 356 (Ct. App. 2017). Although it’s possible to hold a person charged with molestation of a child non-bondable, it can only be done after a hearing, if “the court finds by clear and convincing evidence that the proof is evident or the presumption great that the person committed the offense, that the person poses a substantial danger to another person or the community or engaged in conduct constituting a violent offense, and that no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community.” Id. While this case expanded the protections of Simpson II to those charged with Molestation of a Child, it still, did not address Sexual Assaults.

Sexual Assault was finally addressed in State v. Wein. 244 Ariz. 22 (2018). Marlin Henderson and Guy Goodman were each charged with sexual assault. State v. Wein, 242 Ariz. 352, 353, (Ct. App. 2017), vacated, 244 Ariz. 22 (2018). They both had evidentiary hearings following the process outlined by Simpson II. Id. The judge found that although the State met its burden as to proof evident presumption great, the State failed to prove dangerousness in both cases and set a bond. Id. Initially, the Court of Appeals reasoned that Sexual Assault was an inherently dangerous crime and upheld the catagorial denial of bail for all those charged with Sexual Assault. Id. However, the Supreme Court of Arizona vacated the opinion, holding that categorical prohibitions of bail without regard to individual circumstances are unconstitutional. State v. Wein, 244 Ariz. 22, 31 (2018). In order to deny bail to a person charged with Sexual Assault, there must be proof evident or presumption great as to the charge, and the person must pose a substantial danger to another person or to the community. Id. Most importantly, in making this determination as to dangerousness, courts must engage in an individualized determination while having a hearing with all the requirements outlined in §13–3961(D). Id.

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The Bail Hearing

With this clear understanding of the thought process, history, procedural protections and considerations defendants must receive, it is safe to conclude that if a defendant is being held non-bondable at the initial appearance, an evidentiary hearing should be automatically scheduled no more than seven days later. However, it is important to double check the timing of the hearing to make sure that it was properly calendared and to make sure that it wasn’t forgotten.

Arizona Rule of Criminal Procedure 7.4(b) governs the hearing procedure. Each party may call and cross-examine witnesses. Rule 7.4(b)(1). Victim’s Rights applies. Rule 7.4(b)(2). Evidence is admissible at the hearing only if it is material to whether, and under what conditions, the defendant should be released on bail, and whether probable cause exists to hold the defendant for trial on each charge. Rule 7.4(b)(3). It’s important to remember that rules or objections calling for the exclusion of evidence are inapplicable at a bail eligibility hearing. Id. At the hearing, the State must present evidence. Often, that evidence comes through the testimony of an officer. The State will use the officer’s testimony to show proof evident or presumption great that the defendant committed the charged offense and poses a risk of future dangerousness. The defense has the opportunity to cross-examine the officer and then present evidence or testimony.

To prepare for the hearing, research into the defendant’s background is necessary. This can be as simple as reviewing the initial appearance documents to see if the defendant failed to appear in the past or has a low risk score. It could also be a more involved discussion with the defendant about his or her living arrangements, job situation, the possibility of release to a home without children and in an area away from schools or parks. Explore conditions that might provide community safety like GPS monitoring, a map of permitted travel, pretrial services check-ins and curfews. Then, verify the release plan. Finally, do not overlook contacting the prosecution as the State might be willing to stipulate to the defendant receiving a bond.

At the hearing, be sure to preserve your client’s rights to conduct pretrial interviews of any witnesses called. Consider what objections you might make. For example, Arizona Rule of Criminal Procedure 5.4(C) permits hearsay only if it is reliable. Because proof evident or presumption great is a standard that is higher than probable cause, you can argue that only reliable hearsay should be admitted at a bail eligibility hearing. Relevance, compound questions and vagueness are also other options for objections where appropriate. Finally, be sure that when the Court makes its ruling, it does so by articulating specific findings of fact.

Of course, all of this litigation and all of these procedural safeguards do not guarantee defendants will be granted bail. These procedural rights do provide the defendants with the guarantee of a hearing where the State has the burden of proof. Ultimately, if the State is able to meet the burden, the defendant will be held without bond, but you can be certain that the rights of the defendant have been thoroughly preserved and addressed.

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1Those charged with capital offenses and terrorism also fall into the exception for bail.

2Mr. Jason Simpson Sr. was also originally a litigant joined in this case, but he accepted a plea agreement after the Supreme Court of Arizona granted review, making his involvement in the case moot. Simpson v. Miller, 241 Ariz. 341, 344 (2017).

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Congratulations to this year’s award recipients, and for those who missed our virtual event, here is a recap of the awards & recognition:

Brittany Lamb: Joe Shaw Award Though she is quiet and generally one to avoid self-promotion, Brittany is known for her commitment as she develops her expertise as one of our sex crimes attorneys. She is a resource for the Sex Crimes Group and is quick to volunteer to assist where she can. Brittany’s case-related accomplishments are impressive as she is meticulous in her research and relentless in her litigation. Her colleagues comment she is capable beyond her years of experience while expressing surprise to find a powerhouse of an attorney beneath that polite exterior.

Ashley Oddo: Ross Lee Award Ashley is fearless in her desire to take on the next challenge and is always pushing herself to keep getting better. She believes in her clients and in the ability of those who work around her to push for justice and fairness. She fights for the best outcome for her clients and for any other client as she is always willing to lend a hand brainstorming litigation, helping with draft reviews and otherwise mentoring in whatever way she can. Ashley is undeterred by the notion of fighting a losing battle. She takes on the fight because it is the right thing to do, and she prepares a backup plan to continue pushing if things don’t go her way.

Wesley Peterson: Dean Trebesch Commitment to Training Award For more than 30 years Wes has served as a mentor while working in varying areas and roles within the office. This year Wes’s work has taken on a whole new challenge as he mentors on the frontline as one of our supervisors for EDC. Wes and his team have continued mainly in-person with daily hearings, client interactions and very few telework opportunities. Wes leads his group through the challenges of this year and continues to remain available to mentor and support his team while taking on cases, covering hearings, and trying to manage calendars and a constantly evolving practice in that area. Wes has been extraordinary in his dedication to his team as they continue the fight in EDC.

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Damon Rossi & Josh Cooner: James Haas Award Damon (left) and Josh (right) joined the office in 2020, and they each bring more than 20 years of legal experience. While working in EDC, they have served as mentors and have stepped up as leaders within the group. They assist with research and motion work, while also handling the more complex cases for the group. Together, Damon and Josh have been a tremendous resource throughout the pandemic. They joined the office just before the pandemic hit and quickly took on the task of helping their group navigate the impacts of the pandemic on their area of practice.

Tom Leazotte: Benita Bingle Dizon Award Tom joined us in 2014 and brought with him almost 30 years of law enforcement experience. He has used his experience in countless cases over the years to help lawyers identify discrepancies and exhaust options related to discovery reviews, officer integrity, and on-going efforts for the defense investigation of the case. Tom takes on the additional task of teaching as well, having taught at APDA, the homicide defense conference, and various ethics webinars. Tom maintains a positive attitude and an incredible work ethic, which impresses those around him and positively impacts the results achieved for our clients.

Sabrina “Bri” Fischer: Marita Whelihan Award Bri joined the office in 2018 and came to us with 20 years of experience in the legal community, including work with the Arizona Board of Executive Clemency. She quickly developed a reputation for diligence as she took on cases with thousands of pages of records and completed work with a quality that goes well-beyond what was asked of her. Her efforts have been instrumental to the success of the lawyers she works with and those around her continue to wonder how she manages to put so much heart and energy into every single one of her cases.

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Rebecca Potter: 30 Years with Maricopa County Becca has been invaluable to the office. She selflessly shares her wisdom and experience with the vehicular group and throughout our office as one of our experts on vehicular cases. The level of attention to detail she puts into understanding every aspect of the components to vehicular crimes is unparalleled and truly demonstrates her dedication to her craft. The impact she had on our Vehicular group is impressive, and she will be sincerely missed as she moves on to enjoy retirement.

Paul Prato: 50 Years of Practice Paul graduated in the first class from ASU Law in 1970. During his time with the office, he has worked in the trial groups, Capital, Supervision and Administration. Most recently he re-joined the office after retiring as part of our administrative team and is now practicing with our Appeals group. Paul’s institutional knowledge of the legal community and the history of our office gives us insight into the tremendous growth and development of our jurisdiction and our profession over the last 50 years. We thank Paul for the 50 years he has given to our legal community and to our office.

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State v. Brown, CA-CR 2019-0302 (Filed October 2, 2020) https://www.appeals2.az.gov/decisions/CR20190302Opinion.pdf

¶1 Brown challenges the revocation of his probation after a contested hearing, as well as his sentence of imprisonment for possession of a dangerous drug imposed after the revocation. For the following reasons, we affirm.

Brown was on intensive probation and charged with violating probation by submitting several dirty urine analysis tests (UA). At a contested hearing, Brown challenged admission of the UA results because the procedure used by probation violated 6-100 of the Arizona Code of Judicial Administration. Citing United States v. Haymond, 139 S. Ct. 2369, 2378-79, 2386 (2019), Brown also argued the unconstitutionality of ARS 13-917, requiring imposition of prison if a person on intensive probation commits a new felony.

¶12 Although ACJA violations may, under certain circumstances, affect the reliability of urinalyses, the state’s evidence nonetheless supported the trial court’s ruling on admission in this case. That is, the state explained how Brown’s samples were collected, and despite the specific violations Brown alleges, the court was justified in finding the evidence reliable. See Carr, 216 Ariz. 444, ¶ 5. Thus, the court did not abuse its discretion in admitting the urinalysis evidence.

¶19 Thus, § 13-917(B) neither mandates punishment for a new offense nor unconstitutionally deprives a defendant of the right to trial by jury. Rather, it revokes an offender’s privilege of probation and imposes a prison sentence for his original offense. See State v. Douglas, 87 Ariz. 182, 186 (1960) (probation is a “matter of grace and not of right”). These consequences are solely “part of the penalty for the initial offense” to which Brown pled guilty.

Timothy B., Michael M, Appellants v. Department of Child Safety CA-JV 20-0075 (Filed October 8, 2020) Case summary by David Hintze, Defender Attorney https://casetext.com/case/timothy-b-v-dept-of-child-safety

This case lays out the framework the juvenile court uses (Michael J. factors) when determining if the length of a parent’s incarceration supports terminating parental rights, and, importantly, it expands the definition of a “normal home.” Reading these facts, you can see the injustice often perpetuated by the outmoded thinking of judges when they consider what a “normal” home life should be. This case discusses all the ways a person can still parent and be a positive influence in their child’s life—even while incarcerated—and urges modernizing judicial thinking as it relates to what is normal and what is in a child’s best interests.

Here is an excerpt related to Timothy who was sentenced to 12.5 years in DOC: The court found that Timothy’s imprisonment “has proven to be too great an obstacle to overcome in his attempt” to provide a normal home for H.B. “particularly because there is no parent available,” given that the court terminated Mother’s rights to H.B. as well.

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Elaborating on what it considered to be a “normal home,” the juvenile court found that H.B. “has no parent available to walk her to school, to teach her how to ride a bicycle, go to school functions and help with homework on a regular basis.”

¶18 Although ideally, a natural parent is available to take on daily responsibilities like those the juvenile court cited, many modern parents who are not considered “unfit” are often personally unable to do so, including parents on military deployment, single working parents, chronically ill parents, or parents attending higher education programs. While we do not agree with Timothy that the Michael J. factors are necessarily “neutered” by the juvenile court’s continuing to consider the definition of “normal home” in JS-5609, we agree that a less rigid definition may be appropriate and the juvenile court should have the discretion to consider that a “normal home” may include a parent with a non-traditional presence.

If you represent a client who is also involved in a DCS case, especially one where they are either the only parent or the other parent is also facing the possibility of termination, you should read this case. (Note, this is just one of many grounds that an AAG can use to try and terminate parental rights. Other grounds often used for incarcerated parents include abandonment and the nature of the felony conviction).

State v. Lelevier, CA-CR 2019-0021 (Filed October 9, 2020) https://www.appeals2.az.gov/decisions/CR20190041Opinion.pdf

¶35 We recognize that other states reject the applicability of the felony murder doctrine when the very act of killing can be readily characterized as a predicate felony: a characterization that can hypothetically relieve the state of proving the defendant’s mental state in many homicide cases. And we acknowledge that our legislature has placed great weight on the nature of a killer’s mental state when articulating the comparative gravity of a homicide offense. . . . We recognize the risk that the felony murder doctrine, if applied too broadly, can eviscerate such a statutory scheme.

¶36 Lelevier logically argues that a merger occurs when the single act of strangulation supports both the kidnapping and the felony murder theories. But we are not at liberty to reverse on this ground because jurisprudence, controlling on this court, does not recognize a merger theory. See Moore, 222 Ariz. 1, ¶ 62; State v. Lopez, 174 Ariz. 131, 142- 43 (1992) (rejecting application of merger doctrine with respect to child abuse as a predicate felony for first-degree murder). The Lopez court further reasoned that “whatever the virtue or lack thereof of the merger doctrine, it applies to lesser-included offenses, and child abuse is not a lesser-included offense of murder.” 174 Ariz. at 142-43. Similarly, kidnapping is not a lesser-included offense of murder.

¶37 Given this jurisprudence and the plain language of the relevant statutes, see State v. Chandler, 244 Ariz. 336, ¶ 4 (App. 2017), we conclude the trial court did not err when denying Lelevier’s motion for a judgment of acquittal even if the evidence supported only a single act—specifically, strangulation—that constituted both restraint and homicide.

State v. Hernandez, CA-CR 19-0462 (Filed October 13, 2020) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CR19-0462%20-%20Hernandez.pdf

In 2014, Mr. Hernandez was convicted of three counts of Participating in a Criminal Street Gang, Class 2 Felonies. The jury also found that Mr. Hernandez committed each offense as consideration for the receipt, or in the expectation of receipt, of anything of pecuniary value. In a prior appeal, one conviction and sentence were affirmed while the other two convictions were modified to Attempted Participation, Class 3 Felonies, and on remand, he was sentenced to greater than presumptive prison terms.

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Is the aggravating circumstance of receipt, or expectation of receipt, of pecuniary gain unconstitutionally vague? No. Mr. Hernandez’ sentences are affirmed.

At the outset, the Court rejects the State’s contention that Mr. Hernandez waived his arguments here by failing to raise them in his previous appeal. Mr. Hernandez argues that the pecuniary gain aggravating factor “failed to provide sufficient notice of what behavior is prohibited and failed to provide sufficient standards for its application to avoid arbitrary enforcement by the jury” rendering the aggravator unconstitutionally vague. The Court reviews this argument under fundamental error, as the argument was not raised in the superior court.

A statute is unconstitutionally vague if it does not give persons of ordinary intelligence a reasonable opportunity to learn what it prohibits and does not provide explicit instructions for those who apply it. And a vagueness claim must be examined in light of the facts of the case at hand. But due process only requires that the language of a statute convey a definite warning of the forbidden conduct. As a result, the statute’s failure to specify who must receive or expect to receive pecuniary gain does not make the reach of the statute unclear to a reasonable person.

The jury heard evidence here that Mr. Hernandez was involved with a specific street gang, the methods the gang used to obtain money, and that Mr. Hernandez gave written, detailed instructions on extorting money, committing robberies, and setting up money transfers. Even if the evidence did not show Mr. Hernandez directly received anything of pecuniary value, it still showed that his crimes brought pecuniary gain to his street gang.

Finally, the aggravator provides sufficient guidance to describe offenses committed for pecuniary gain and therefore does not allow arbitrary or discriminatory enforcement.

State v. Bigger, CA-CR 201900012-PR (Filed October 14, 2020) https://www.appeals2.az.gov/decisions/CR20190012Opinion.pdf

Mr. Bigger was convicted after trial and sentenced in 2007. His conviction and sentence were affirmed on appeal in March 2012. The trial court granted an extension for filing Bigger’s PCR notice, and it was filed in May 2012. After several extensions, the PCR petition was filed in January 2016. Bigger had PCR counsel and the court also allowed him to file a pro se petition.

The court addressed two opinion-worthy issues:

1. The first issue is whether Bigger’s claims of ineffective assistance of counsel are time-barred. The court goes through a very dense six-page analysis and ultimately concludes in ¶19 that the IAC claims are not time-barred because the filing of the untimely notice was not his fault.

2. The second interesting issue whether a change in the law required retroactive application. Although the Court of Appeals in State v. Nottingham, 231 Ariz. 21 (App. 2012) changed state law and “imposed a new requirement for the eyewitness-specific instruction in the absence of improper state conduct,” the “new” requirement (from 2012) was procedural, not substantive, and did not require retroactive application. It was also not “a significant change in the law” for purposes of post-conviction relief. State v. Reed, CA-CR 17-0620 (Filed October 20, 2020) https://www.azcourts.gov/Portals/0/OpinionFiles/ Div1/2020/CR17-0620%20-%20Reed.pdf

Reed was convicted of Voyeurism, a Class 5 Felony. The victim hired a law firm to represent her, assisting with determining and enforcing her rights as a victim. The firm performed legal services, and the victim agreed to pay for those services at established hourly rates. During a six-month period, the firm billed 37.6 hours of attorney time and 19 hours of paralegal time, totaling $17,90.50. Most of the time included trial preparation and attending trial.

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The firm spent no time on civil litigation or other independent legal services. Reed was placed on probation following conviction. A motion for restitution sought, among other things, $17,909.50 in attorneys’ fees. After an evidentiary hearing, the superior court issued a restitution order awarding the victim $17,909.50 in attorneys’ fees. Reed timely appealed.

The Court held that the superior court properly awarded the victim restitution for attorneys’ fees she reasonably incurred.

The Court reviews a restitution award for abuse of discretion, recognizing that statutory interpretation is to be reviewed de novo. Restitution need only be proven by preponderance of the evidence, and the superior court has wide discretion in setting restitution based on the facts of each case. The Court views the facts and all reasonable inferences in the light most favorable to upholding a restitution award. Although Reed’s counsel challenges the restitution awarded, no contention is made that attorneys’ fees cannot be the subject of a restitution award. The Court has previously upheld awards for attorneys’ fees.

1. Fees Awarded Were Economic Losses Recoverable Through Restitution, Not Consequential Damages.

Reed argued the fees awarded were not economic losses but instead nonrecoverable consequential damages because the fees had no nexus to the crime, were attenuated factually and temporally from the crime, and did not flow directly and immediately from the crime. But restitution can be sought for post-sentencing expenses like therapy and counseling. Indeed, Reed stipulated to the cost of therapy for the victim. Finally, the victim actually incurred the fees; the fees were not a theoretical future loss.

This is also not a case where the restitution order exceeded the victim’s actual loss. Nor did the victim receive a benefit from the defendant’s behavior.

2. Reed’s Counsel Has Not Shown the Superior Court Failed to Assess the Reasonableness of the Restitution Award.

Reed argued that the superior court erred by blanket-approving all the fees requested as restitution without examining them for reasonableness. This is not supported by the record, according to the Court. The lower court is not required to make specific findings of fact or conclusions of law in awarding restitution.

Reed argued that the hourly rates were unreasonable (around $400 per hour). On this record, Reed has not shown the applicable hourly rate was unreasonable or contrary to custom. Consequently, Reed has not shown that the lawyer’s hourly rate, or the restitution awarded, impermissibly punished the defendant. 3. The Victim Was Obligated to Pay the Fees

The evidence provided to the superior court included an affidavit stating the victim agreed to (and accordingly, was obliged to) pay the attorney’s fees. The record allowed the superior court to conclude the victim had a contract with the law firm requiring her to pay for those fees. Whether she had already paid the fees or not did not defeat a restitution award.

4. The Victim’s Attorney Did Not Privately Prosecute Reed in Violation of Reed’s Due Process Rights

Reed suggested the victim’s attorney acted as a private prosecutor and that it violates due process to allow a private attorney, who represents the victim in a criminal case, to help prosecute the criminal case. The issue was not raised in the superior court, and not raised on appeal. To the extent the argument is raised here, the record does not show any participation by the victim’s attorney in the case that would violate Reed’s due process rights.

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Reed’s Widow Has Shown No Basis to Vacate the Restitution Award.

Reed’s widow does not challenge the restitution award itself. Rather, she challenges the fact that the Clerk of the Maricopa County Superior Court recorded the order with the Maricopa County Recorder. She argues the recording created a lien on community property she owned with Reed. She asks the court to order that (1) community property is not subject to the restitution order, (2) the lien be released, and (3) the Clerk of the Superior Court record this decision with the County Recorder and the Arizona Department of Transportation. These requests exceed the Court’s authority on remand from the Arizona Supreme Court and its jurisdiction in this criminal appeal. The Court denies her relief without prejudice.

State v. Bolivar, CA-CR 2018-0088 (Filed October 27, 2020) https://www.appeals2.az.gov/decisions/CR20180088Opinion.pdf

Mr. Bolivar appealed his convictions for eight sex offenses against his step-daughter, B. In 23 pages, the court dismisses all of Bolivar’s arguments on appeal and affirms the convictions.

I. Referring to B as “victim” during trial

Bolivar filed a motion in limine to preclude the court and the state from referring to B as the “victim” during trial arguing that, “where the only evidence that a crime has been committed is the uncorroborated testimony of the complaining witness, and the defendant maintains his innocence, referring to the complaining witness as the “victim” implies the charged crimes had been committed before any evidence was taken or verdicts deliberated on.”

The court denied the motion but said that the first or second time B was referred to as “victim,” he would give a limiting instruction about how “victim” is a term of art and that only the jury gets to decide whether the acts happened. At trial the court never actually gave the limiting instruction nor did Bolivar bring it up again. At the end of trial, the court did give a standard instruction to which Bolivar did not object and neither did he offer anything different.

After a five-page analysis, the Court held there was no error. However, in footnote 5, Division 2 says, “We do not conclude the trial court would have abused its discretion by giving a limiting instruction.”

II. Mid-trial publicity

After empanelment, the Court instructed the jurors not to do independent research and to evaluate the facts based solely on what was presented at trial. That night, child victim B and her mother were violently attacked, which necessitated a continuance of trial. The jurors were instructed that the continuance was for “an unforeseen matter,” they were not to be exposed to any information or news accounts about the people or events involved in the trial, and they were to inform the court if they were.

The court revoked Bolivar’s release after the attack. Bolivar filed motions for mistrial and change of venue after publication of a frontpage newspaper article entitled, “Defendant jailed without bond after attack against witness in Mexico.” The article had a picture of Bolivar being handcuffed and taken into custody with a caption that said, ”The court has ordered that Bolivar, who is on trial for alleged sex crimes against a child, be sent to jail without bond after saying it was clear Bolivar ordered an attack on his alleged victim, the girl’s mother and the mother’s boyfriend.” When the jury came back, they were admonished again to avoid news about the trial and to report it if they encountered it. Bolivar asked that the jurors be individually interviewed regarding their possible exposure. The Court declined to do so and denied the motions for mistrial and change of venue. The next morning, a juror inquired of the bailiff whether the case would be dismissed because of the news that Bolivar had tried to have his wife killed to prevent her testimony. The juror spoke with the bailiff away from the other jurors because he “still had to hear a lot of testimony” and he only saw the headline.

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¶30 Absent an allegation that other jurors had read the newspaper, the trial court was not required to question them about exposure to the article. See State v. Davolt, 207 Ariz. 191, ¶ 56 (2004) (“alleged incidents of juror misconduct” in addition to publication of newspaper article related to case required to trigger court’s duty to investigate). The standard Bolivar proposes—a duty to investigate even without an allegation of actual juror misconduct—would be unworkable in any trial subject to continuing press coverage and would no doubt heighten the very risk the trial court was attempting to mitigate—that jurors, upon being questioned about the article, would seek it out. Thus, although the court had discretion to question jurors as to whether they had been exposed to the midtrial publicity related to Bolivar’s case, without an allegation of exposure, it was not required to do so. See id. ¶ 57; State v. Salazar, 173 Ariz. 399, 406 (1992) (court questioned jurors to determine if they had seen midtrial newspaper article absent specific allegations of misconduct).

III. Alternative counts under § 13-1417

¶39 Here, Count One of the information charged Bolivar with continuous sexual abuse of a child under § 13-1417 committed between May 7, 2006, and May 6, 2014. Count Two charged him with sexual conduct with a minor committed between May 7, 2006, and May 6, 2010, and Count Nine charged him with molestation of a child committed between May 7, 2013, and May 6, 2014. During Bolivar’s closing argument, the trial court excused the jury and stated it was concerned that Counts Two and Nine were included within the time period alleged in Count One, violating § 13-1417(D).

The trial court proposed modifying the verdict forms and jury instructions to reflect the alternative nature of Counts One and Two and Counts One and Nine, and the state ultimately agreed to the modification.

¶47 Although the information did not originally charge Counts One and Two and Counts One and Nine in the alternative, the jury was informed before deliberations that the information had been amended to charge those counts in the alternative in compliance with § 13-1417(D). This amendment did not change the nature of the underlying offenses; Bolivar was not convicted of an offense with which he had not been charged, and he was on notice of all the charges against him. And, to the extent Bolivar argues his defense was impaired or prejudiced in his opening brief, he does not properly develop or otherwise support this argument and we do not address it.

IV. Constitutionality of A.R.S. § 13-1407(E) ¶63 Finally, Bolivar claims he was deprived of due process by Arizona’s statutory scheme under A.R.S. § 13-1407(E) because at the time of his trial, this statute, in providing for an affirmative defense, placed the burden of proving lack of sexual motivation on the defendant for sexual abuse and molestation of a child. Instead, he asserts, the state should have been required to prove sexual motivation because such motivation “should [have been] considered an element of the offense.” As Bolivar concedes, our supreme court has already determined that this statutory scheme does not violate due process.

State v. Hernandez, CR-19-0193 (Filed October 27, 2020) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CR190193PR.pdf

In March 2016, a Pima County sheriff’s deputy was driving on patrol when a driver ran a stop sign, causing him to swerve to avoid a collision. The deputy viewed the driver’s face through a lowered window and later testified that he would never forget the driver’s face. The deputy attempted a traffic stop, but the car fled, and three individuals bailed from the vehicle into an apartment complex. As the men ran off, the deputy observed the driver’s profile from ten feet away. Shortly after the incident, the deputy was contacted by federal marshals, who had been pursuing the car in connection with another incident. The marshal showed the deputy a picture of Hernandez, whom the deputy identified as the driver.

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Police impounded the car without collecting evidence from its interior. About a week later, the car was returned to its rightful owner, who had reported the car stolen. Three months later, Hernandez was arrested and indicted for one count of Unlawful Flight from a Law Enforcement Vehicle.

Before trial, Hernandez requested a Willits instruction, arguing that the State’s failure to collect DNA and fingerprint evidence from the car denied him of a fair trial. The trial court denied the request. He was convicted and sentenced to three years in prison.

The Court of Appeals reversed his conviction and remanded for a new trial, concluding that the trial court abused its discretion by refusing to give a Willits instruction.

Does law enforcement’s failure to collect putative fingerprint and DNA evidence warrant a Willits instruction? No. The trial court did not abuse its discretion in denying Hernandez’s request for a Willits instruction. The Court vacates the Court of Appeals decision and affirms Hernandez’s conviction and sentence.

Generally, a defendant is entitled to a Willits instruction if: (1) the State failed to preserve obviously material and reasonably accessible evidence that could have had a tendency to exonerate the accused; and (2) there is resulting prejudice. A defendant must do more than speculate about how the evidence might have been helpful; there must be a real likelihood that the evidence had evidentiary value.

Here, Hernandez does not assert that the State lost or destroyed evidence, only that it failed to collect fingerprint and DNA evidence from the car before returning it to the owner. But the State does not have an affirmative duty to seek out and gain possession of potentially exculpatory evidence, nor does it have a duty to gather evidence for a defendant to use in establishing a defense.

What is “obviously material” evidence under Willits? Generally, evidence is “material” if it has some logical connection with the facts of the case or the legal issues presented. The Court concludes that evidence is “obviously material” when, at the time the State encounters the evidence during its investigation, the State relies on the evidence or knows the defendant will use the evidence for his or her defense.

Application to Hernandez’s Case

The trial court previously concluded that the State did not have a duty to preserve fingerprint and DNA evidence from the car when, at the conclusion of its investigation, Hernandez had not been apprehended, and the State developed sufficient evidence establishing the identity of the driver. The Court of Appeals disagreed, noting that the physical evidence from the interior of the car was material because the “sole issue” at trial was the identification of the driver.

The effect of the Court of Appeals’ decision, however, would require the State to gather evidence based upon any number of possible defenses an accused might later proffer at trial. This is inconsistent with the State’s duty to preserve evidence it is aware of and when that evidence is obviously material and reasonably within its grasp. The lower court’s decision would not further the purpose of Willits, either. The deputy had already identified Hernandez, so the officers had no need to collect fingerprint or DNA evidence to identify the suspect. Additionally, at the time, law enforcement had no knowledge that Hernandez would later assert the existence of an alternate driver that would make DNA or fingerprint evidence material. Given this, Hernandez has failed to show that DNA or fingerprint evidence was “obviously material.” Thus, the trial court did not abuse its discretion.

Additionally, Hernandez also failed to show how the evidence would exonerate him. Any fingerprint or DNA evidence would have either (1) matched, showing he was the driver or (2) not match, which would not conclusively exculpate him because he might not have left fingerprints or DNA.

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State v. Wilson, CA-CR 2020-0071 (Filed October 29, 2020) https://www.appeals2.az.gov/decisions/CR20200071Opinion.pdf

Wilson punched his court-appointed contract counsel in an attempt to create a conflict and get a new attorney. He was charged with Aggravated Assault as a class 6 felony because ARS § 13-1204(A)(8)(i) makes simple assault a felony if the victim is a public defender engaged in or resulting from their official duties. The statute does not define “public defender.”

At trial, Wilson moved for a directed verdict and argues on appeal that his lawyer wasn’t a public defender. The Court concluded that contract counsel are also public defenders.

State v. Johnson, CA-CR 2019-0101 (Filed November 2, 2020) https://www.appeals2.az.gov/decisions/CR20190101Opinion.pdf

After conviction at trial, Mr. Johnson’s appellate counsel filed an Anders brief stating he found no issues for appeal. Johnson filed a supplemental brief arguing that he had been denied the right to waive counsel and proceed pro se. The court ordered counsel to brief the issue, found reversable error, and vacated the conviction and sentence.

¶3 At the beginning of the first day of trial, Johnson complained about the prosecutor as well as his current counsel, insisting he wanted to “dismiss” his appointed attorney. The court denied that request and Johnson began to leave the courtroom, but he stopped when the court asked him to remain so it could explain further. The court recommended that Johnson remain for his trial and encouraged him to “stay and work with your experienced lawyer who is under an oath to represent you to the best of his ability.” The court further stated, “this is not the juncture at which you can dismiss your lawyer and delay the trial. You certainly don’t want to represent yourself today.” Johnson interjected, “Yes, I do.” The court continued “you are ready to go with a lawyer, and it is way too late to make a change of this nature at this time. I don’t hear grounds to do so.” Johnson resumed his complaints about his counsel and counsel’s refusal to pursue a justification defense. There was more discussion between Johnson and the court and an inquiry whether to “revisit” his previous competency determination, but Johnson never again expressed a desire to represent himself.

¶5 A request [to proceed pro se] made before the jury is empaneled is timely. And a defendant’s request “trigger[s] [a] court’s protective duty to ascertain whether [the] waiver of counsel [is] intelligent, knowing and voluntary.” A court may not “refuse to consider the defendant’s request altogether. Otherwise the constitutional right to defend one-self if he intelligently and competently chooses would be illusory.”

The Court of Appeals disagreed with the state that Johnson’s request to represent himself was not “clear and unequivocal.” It also found that Johnson had not waived his right to proceed pro se by failing to obtain a clear ruling from the court and acquiescing to representation by counsel. The court distinguished State v. McLemore, 230 Ariz. 571, ¶ 23 (App. 2012) because McLemore had apparently made his pro se request well before trial and “had numerous opportunities” to ask the court to rule on his motion, whereas Johnson made his request on the first day of trial.

Finally, the state argued that Johnson’s previous competency proceedings prohibited him from self-representation. “The state offers no Arizona authority . . . suggesting it would be appropriate for this court to make that determination in the first instance on appeal nor that it is appropriate to remand the matter to the trial court for that purpose.”

¶16 Because the denial of the right to proceed pro se, without further inquiry, violates a defendant’s constitutional rights and is reversible error, Johnson’s conviction and sentence are vacated, and the case is remanded to the trial court for further proceedings consistent with this decision.

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Taylor v. Riojas, 592 U.S. ____ (2020) (Decided November 2, 2020) https://www.supremecourt.gov/opinions/20pdf/19-1261_bq7c.pdf

Taylor was an inmate in the custody of the Texas Department of Criminal justice. For six full days, he alleged that correctional officers confined him to a cell that was “covered, nearly floor to ceiling in massive amounts of feces: all over the floor, the ceiling, the window, the walls, and even packed inside the water faucet.” Taylor did not eat or drink out of fear that his food was contaminated. Later, he was moved to a second cell that was frigid cold and had a clogged drain in the floor to dispose of bodily waste. After trying to hold his bladder for over 24 hours, he eventually (involuntarily) relieved himself which caused the drain to overflow and raw sewage to spill across the floor. There was no bunk in the cell, and he had to sleep naked on the floor in sewage.

Were the prison officials who housed Taylor in “cells teeming with human waste” for six days protected by qualified immunity? No.

“[N]o reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.”

Concurrence: The well-known criteria for granting review has not been met here. State v. Nunn, CA-CR 2019-0160 (Filed November 9, 2020) https://www.appeals2.az.gov/decisions/CR20190160Opinion.pdf

While a DOC inmate, Nunn was found in possession of chemicals classified as dangerous drugs. After his release, he was convicted in absentia of promoting contraband, possession of drug paraphernalia, and possession of dangerous drugs and failed to appear for sentencing. He was arrested five months later and sentenced to concurrent prison terms, the longest of which was fourteen years.

Nunn appealed, arguing that his possession of dangerous drugs conviction violated the prohibition against double jeopardy. The court agreed and vacated that conviction. It also independently considered and found that Nunn had not waived his right to appeal by failing to appear for sentencing.

¶5 A.R.S. § 13-4033(C) does not allow a defendant to appeal a final judgment of conviction if his “absence prevents sentencing from occurring within ninety days after conviction and [he] fails to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary.”

¶8 We conclude Nunn was not adequately warned of the consequences of delaying sentencing by absconding. The following warning appearing in the written release conditions was inadequate: “If convicted, you will be required to appear for sentencing. If you fail to appear, you may lose your right to a direct appeal.”

Interesting footnote 1 On reply, Nunn also claims State v. Reed, 248 Ariz. 72, ¶ 15 (2020), renders § 13-4033(C) unconstitutional because it provides that the legislature lacks authority to modify a defendant’s right to appeal under the Arizona Constitution. See Ariz. Const. art. II, § 24. “[W]e do not determine constitutional issues unless a decision is necessary to determine the merits of the action.” Given our resolution of the matter, we need not reach the constitutional claim.

¶16 Nunn’s conviction for possession of a dangerous drug required proof he had knowingly possessed “fluro-amb and/or xlr-11 and/or fub-amb,” or in other words, an item that constituted a dangerous drug. And, Nunn’s conviction for promoting prison contraband required that he had knowingly possessed such an item while confined in prison. Neither of these provisions required Nunn to know that the item he had possessed was legally classified as a “dangerous drug” or “prison contraband” to sustain a conviction, and the elements in common made them greater and lesser-included offenses. Therefore, Nunn faced multiple punishments for possessing a dangerous drug, violating double jeopardy.

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State v. Leeman, CA-CR 2020-0144-PR (Filed November 19, 2020) https://www.appeals2.az.gov/decisions/CR20200144Opinion.pdf

After trial, Leeman was convicted of 13 counts and child abuse and two drug charges. She was sentenced to concurrent and consecutive prison terms totaling 61 years. On appeal, the court ordered resentencing of some counts. This case is Leeman’s 6th PCR petition. She made three arguments:

1. Her sentences are illegal because the trial court “misapplied the law related to Hannah priors,” [not reached because previously adjudicated] 2. Her otherwise untimely PCR is not precluded by Rule 32.2(b) because she provided “a reason” for the untimely filing. Namely, ineffective assistance because previous counsel failed to make the precise argument, and 3. That she is entitled to an evidentiary hearing.

The trial/PCR court ordered additional briefing on an application of priors issue and “whether the new Rule 32.2(b) can be properly interpreted to allow ineffective assistance of counsel claims to avoid preclusion.”

¶5 After considering the initial and supplemental briefing, the trial court summarily dismissed Leeman’s petition, finding she had not provided “sufficient reasons,” as required by Rule 32.2(b). . . . The court further concluded that “[e]ven if defendant were able to present sufficient reason(s) to justify her untimely filing, she is not entitled to relief.” [Because the because the Court agrees that the PCR was untimely, it does not address the application of priors issue].

There is a lengthy discussion about the meaning of “sufficient reason” for an otherwise untimely PCR. It seems that “sufficient reason” is perhaps less than “good cause” but more than “any reason.”

¶15 While we recognize the tension between summary dismissal and a defendant’s right to raise a claim that the sentence imposed was not authorized by law, we conclude, based on the record in this case, that the word “sufficient” in Rule 32.2(b) necessarily has to encompass more than the mere failure to raise a specific issue. Nor, based on this record, do we find that the trial court abused its discretion by concluding that Leeman’s inclusion of the discovery of a more nuanced argument more than twenty years after she was convicted did not constitute a sufficient reason to avoid preclusion under Rule 32.2(a)(2) or the requirements of Rule 32.2(b). Leeman’s apparent assertion that any reason constitutes a sufficient reason for an untimely filing would render the addition of that word to the rule meaningless.

¶16 And, even assuming, without finding, that the meaning of the word “sufficient,” as used in Rule 32.2(b), is ambiguous, it is nonetheless clear that the task force, and by extension the Arizona Supreme Court, intended that the trial court act as the gatekeeper to determine if the reason provided to avoid a finding of untimeliness is sufficient. It thus bears repeating that the task force stated and the court recognized that, while it is the defendant’s job to provide the reason for the untimely filing, “whether the reason is a good one is what the court decides.”

In conclusion, the Court quoted the lower court with approval and included some useful language for when defense counsel misses a time limit:

The purpose of the change to Rule 32.2(b) is not lost on the Court. Keeping a defendant in prison longer than is intended by the sentencing judge or authorized by law through blind adherence to procedural timelines serves no legitimate purpose. However, permitting a defendant, who has been competently represented by counsel, and whose case has been subject to extensive judicial review, to bring piecemeal litigation asserting new theories based on a[n] alternative interpretation of the facts and permitting that defendant to ignore all procedural time requirements also serves no legitimate purpose.

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State v. Holmes, CA-CR 2019-0202 (Filed December 3, 2020) https://law.justia.com/cases/arizona/court-of-appeals-division-two-published/2020/2-ca-cr-2019-0202.html

¶1 The state appeals from the dismissal of its indictment charging Holmes with weapons misconduct. For the reasons that follow, we reverse.

To be a prohibited possessor in Arizona, you have to know that you have the weapon and you need to have adequate notice that you’re a member of a class defined in 13-3101(7) prohibited possessor) but you don’t have to actually know that you’re in that class or that you’re prohibited from having a weapon.

Holmes pled guilty to a 6U offense, the plea stated that the offense was a felony for all purposes until it was designated a misdemeanor. The plea was accepted and entered and then Holmes failed to appear for sentencing. Holmes was later arrested with a weapon and charged for misconduct. The court granted his 16.4b motion to dismiss finding that the indictment was insufficient to charge him with criminal conduct because he had no prior notice that he was “a convicted felon and thus a prohibited possessor.”

The state appealed, arguing that the whether Holmes had been convicted of a crime and whether he had notice a that he was a prohibited possessor are questions of fact “not cognizable in a motion to dismiss.” The state also argued that although an indictment may be legally insufficient if a defendant can admit to all of the allegations therein and still not have committed a crime, “[i]f Holmes admitted to the allegations in the indictment, it would be clear that a crime was committed.”

Although Holmes conceded below that “knowledge he was a prohibited possessor is not an element of the offense,” he contends on appeal that, consistent with Rehaif v. United States, 139 S. Ct. 2191 (2019), which interprets 18 U.S.C. § 922(g), the state is now required to prove a defendant knew he was a convicted felon and prohibited possessor at the time of the offense.

The court cited previous case law for the proposition that one is “convicted” after any determination of guilt, whether by plea or verdict, and that sentencing is not a requirement for conviction. The court distinguished State v. Barnett, 209 Ariz. 352 (App. 2004), because there, the state conceded that no judgement of guilt had been entered after the plea.

The court was not persuaded or bound by Rehaif, where USSC merely interpreted the federal prohibited possessor statute finding that it required knowledge of both possession of the weapon and of being a member of the prohibited class. They cited Justice Alito’s dissent in Rehaif just for fun.

¶22 Despite the fact that neither the trial court nor defense counsel informed Holmes of his convicted-felon and prohibited-possessor status, Holmes had notice of both based on the language of the plea agreement and applicable law.

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State v. Olaoye, CA-CR 19-0416 (Filed 12-31-20) https://law.justia.com/cases/arizona/court-of-appeals-division-one-unpublished/2020/1-ca-cr-19-0416.html

The trial attorney in this case objected only once to an instance of actual misconduct, while the court found multiple instances of six forms of misconduct that were so pervasive that the cumulative impact deprived Olaoye of a fair trial and resulted in the conviction being vacated and case remanded. The prosecutor engaged in improper argument during the State’s opening statement.

¶13 The prosecutor… referred to evidence the defense would likely emphasize and then rhetorically asked jurors what that evidence had to do with whether S.H. consented—the main issue in this case…The prosecutor’s repeated attempts manifested a disregard for proper opening statement presentation.

The prosecutor improperly asked a lay witness to opine on the ultimate issue.

¶14 The prosecutor asked D.S. the following: Q: And let’s be clear. If you have sex with someone while they’re passed out, is that consensual? A: No. I would think not. Q: Okay. Would you do that? A: No.

¶17 Because … consent was the only issue for the jury. Asking D.S. for an opinion on the ultimate issue was tantamount to asking him “is Olaoye guilty?”

The prosecutor engaged in vouching.

¶20 The prosecutor vouched for the State’s case when he asked the lead detective whether every investigation by law enforcement is submitted for prosecution and whether every submission results in criminal charges.

¶22 The only relevance for this line of questioning is to suggest the charges against Olaoye show the case against him was strong. This inference is at odds with the requirement jurors “must not think that the Defendant is guilty just because of a charge.” Rev. Ariz. Jury Instr. Stand. Crim. 2 (4th ed.).

The prosecutor impugned the integrity of defense counsel.

¶23 During his rebuttal closing, the prosecutor said: “Defense counsel did this throughout the trial and in closing, attacking the victim of this case, [S.H.]. Attacking the victim of a sex assault. I’m not even going to touch that.”

¶25 The statements do not relate to the defense’s theory but seem designed to appeal to juror sympathy. The record reveals no indication defense counsel engaged in anything other than a respectful—and constitutionally protected—examination and argument. Testing an accuser’s account and credibility is part of defense counsel’s duty and is not an “attack” on S.H.

The prosecutor improperly appealed to juror sympathy.

¶26 After showing video of S.H. tearfully talking to an officer about the incident, the prosecutor stated: “Imagine being in [S.H.’s] position. ‘I didn’t want to get hurt.’ ‘I didn’t want him to hurt me.’ Waking up and having no idea what’s going on and then realizing that’s what’s happening to you.”

¶27 … In this instance, the prosecutor was not simply asking jurors to rely on their own common sense and experience. He was “playing on their sympathy for [S.H.].”

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The prosecutor referred to evidence outside the record.

¶32… The prosecutor deliberately brought unadmitted evidence to trial and pulled it from his pocket in a dramatic, calculated fashion to show the jury during his closing.

¶33 In short, the prosecutor’s actions and statements rose to the level of unsworn testimony meant to conclusively rebut an important factual consideration in Olaoye’s defense. (Reminder that “although memorandum decisions of Arizona state courts are not precedential, they may now be cited for persuasive value, but only if: a decision was issued after January 1, 2015; no opinion adequately addresses the issue before the court; and the citation is not to a de-published opinion or a de-published portion of an opinion.

“These amendments further provide that (a) a citation must indicate if a decision is a memorandum decision; (b) a party citing a memorandum decision must provide either a copy of the decision or a hyperlink to the decision where it may be obtained without charge; and (c) a party has no duty to cite a memorandum decision.”)

State v. Hannah/Harris CA-SA 20-0152 (Filed December 31, 2020) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-SA%2020-0152%20Hannah%20Final.pdf

Harris was charged with two counts of 1st degree murder, among other charges, and the State noticed its intent to seek the death penalty for each murder. Harris provided notice that in the penalty phase of his future trial he would offer evidence regarding his mental health, including evidence from two psychologists who examined Harris. The court permitted the State to have Harris examined by its own expert, but subject to limitations requested by Harris. Those limitations were generally that the State’s psychologist: could not conduct a general exploration of Harris’s psychology; could not discuss the circumstances of the offense; could only perform two specific psychological tests, and that the State would either provide Harris a list of anticipated tests or their expert could only mirror defense testing.

The state special actioned. Did the trial court’s limiting orders regarding the State’s expert inappropriately limit the State’s ability to develop evidence to rebut Harris’s mitigation evidence?

Generally, the State’s expert must be permitted to examine Harris in a breadth and manner that the expert believes ethically necessary to provide adequate support for his opinions. “The superior court cannot ‘deprive the State of the only adequate mean to contest the conclusions of a defense psychiatric expert.’”

By putting his mental health at issue, Harris opened the door for the State to examine his general mental-health history and condition. To limit the State’s discovery regarding his mental health he would have to show prejudice or material inconvenience, which he did not do.

The court noted that by putting his mental health at issue as a mitigating factor Harris waived his right against self- incrimination in any penalty phase. Because that waiver does not permit the State to use incriminating statements before the penalty phase, the State’s expert would be permitted to discuss circumstances of the offense in his examination. And because the mitigating factors presented related to the circumstances of the offense, it would be unfair to prohibit the State from exploring them in its examination.

At one point in the opinion (Paragraph 20), the court seemed to suggest that it was Harris’s broad scope of mitigating factors and extensive testing by his own experts that justified permitting the State’s expert to conduct an examination from scratch. But throughout the remainder of the opinion the court emphasizes that the actual key is the State’s expert being able to conduct an examination compliant with his ethical obligations as a medical professional. It even notes that if the State’s expert conducted a broader examination than the defense experts, that wouldn’t necessarily be inappropriate.

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TRIAL RESULTS Jury and Court Trial Results October 2020 — December 2020

CLOSED ATTORNEY JUDGE CHARGE NO. OF RESULT CO-COUNSEL COUNTS INVESTIGATOR PARALEGAL MITIGATION

JUSTICE COURTS (PUBLIC DEFENDER)

11/10/2020 E. QUESADA SEARS TR2020-105183-001 JURY TRIAL – DUI-LIQUOR/DRUGS/VAPORS/COMBO, M1 1 GUILTY LESSER/ DUI W/BAC OF .08 OR MORE, M1 1 FEWER EXCEED 85 MPH, M1 1 DRIVE W/LIC SUSP/REVOKE/CANC, M1 1

11/16/2020 S. MEALEY SAULS TR2020-102757-001 JURY TRIAL – DUI-LIQUOR/DRUGS/VAPORS/COMBO, M1 1 GUILTY AS CHARGED DUI W/BAC OF .08 OR MORE, M1 1 EXTREME DUI-BAC .15- .20, M1 1 EXTREME DUI-BAC > .20, M1 1

10/26/2020 D. BROWN RUSSELL JC2019-139352-001 JURY TRIAL – SHOPLIFTING-CONCEALMENT, M1 1 GUILTY AS CHARGED

PROBATION VIOLATION (PUBLIC DEFENDER)

12/1/2020 R. MEENTS MILLER CR2020-124466-001 COURT TRIAL – RESISTING ARREST, F6 1 GUILTY LESSER/ FEWER 10/26/2020 H. POLANCO YOST CR2020-131172-001 COURT TRIAL – AGG ASLT DV-IMPEDE BREATHING, F4 1 PLED GUILTY AS DISORD CONDUCT-LANG/GESTURE, M1 1 CHARGED – CRIMINAL DAMAGE-DEFACE, M2 1 OTHER ALLEGATIONS/ CASES DISMISSED/NOT FILED 12/29/2020 J. MACAULAY SACCONE CR2020-130216-001 COURT TRIAL – POSS WPN BY PROHIB PERSON, F4 2 GUILTY AS CHARGED

12/14/2020 D. SALAZAR MILLER CR2020-135752-001 COURT TRIAL – AGG ASLT-VIOL PROTECTN ORDER, F6 1 GUILTY LESSER/ UNLAW MEANS TRANSP-CONTROL, F5 1 FEWER IJP - DISOBEY/RESIST ORDER OR MANDATE 1 OF COURT, M1

12/1/2020 R. MEENTS MILLER CR2020-135819-001 COURT TRIAL – AGG ASLT-OFFICER, F5 2 GUILTY LESSER/ FEWER

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CLOSED ATTORNEY JUDGE CHARGE NO. OF RESULT CO-COUNSEL COUNTS INVESTIGATOR PARALEGAL MITIGATION

TRIAL GROUP A (PUBLIC DEFENDER)

12/9/2020 K. EWING DRIGGS CR2019-135811-001 COURT TRIAL – K. WALTER AGG ASLT-DEADLY WPN/DANG INST, F3 1 NOT GUILTY W. PAJAK AGG ASLT - TEMP DISFIGUREMENT, F4 1 M. MCGOVERN

10/1/2020 A. ALTMAN COOPER CR2019-143703-001 JURY TRIAL – M. SALIDO AGG ASLT-DEADLY WPN/DANG INST, F3 1 NOT GUILTY A. OLSON

TRIAL GROUP B (PUBLIC DEFENDER)

10/1/2020 R. DITSWORTH STEINER CR2019-134942-001 JURY TRIAL – J. ROMANI THEFT-CONTROL PROPERTY, F2 1 GUILTY AS CHARGED K. ARREOLA AGG TAKING ID-GT 1000 DLR LOSS, F3 1 FORGERY-W/WRITTEN INSTRUMENT, F4 1

DEPENDENCY TRIAL RESULTS (LEGAL ADVOCATE) CLOSED TEAM JUDGE JD# DEP OR SEV TRIAL RESULTS

10/15/2020 A. SAMARDZICH MYERS JD34194 SEV GRANTED K. NATION

10/22/2020 L. RICHARDSON GORDON JD37588 SEV GRANTED R. JENKINS

10/26/2020 L. RICHARDSON GORDON JD39482 DEP GRANTED R. JENKINS

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for THE DEFENSE January 2021 Volume 30, Issue 4, Pg. 28

for THE DEFENSE January 2021 Volume 30, Issue 4, Pg. 29

for THE DEFENSE January 2021 Volume 30, Issue 4, Pg. 30

A publication of the Maricopa County Public Defender’s Office Delivering America’s Promise of Justice for All

Editors Stephanie Conlon Sierra Taylor

Assistant Editor Stephanie Cravath

Office 620 West Jackson St., Suite 4015 Phoenix, AZ 85003 p: 602.506.7711 f: 602.372.8902 [email protected]

for THE DEFENSE is the training newsletter published by the Maricopa County Public Defender’s Office, Gary Kula, Director

for THE DEFENSE

Volume 30, Issue Maricopa County Public Defender Newsletter October, 2020 A Guide to Advising a Witness In This Issue: on How to Invoke the 5th A Guide to Advising a Witness on How to Invoke the 5th Amendment Amendment By Rebecca Montoya, Defender Attorney By Rebecca Montoya, Defender Attorney Page 1

“To force a person to choose among self-incrimination, perjury and Defending at the Grand Jury contempt offends notions of human dignity. There must be a fourth By Ibrahim Ali, choice: the option to remain silent without facing contempt liability.”¹ Defender Attorney Page 10 Known colloquially as “Pleading the Fifth,” invoking the right to refuse to testify is something we’ve all seen in countless movies and television The Eye for an Eye Principle, The shows, but how does invoking the Story of Cain and Abel, and The Gift of Mercy in Capital Jury Fifth Amendment work in practice? Selection This article will discuss the process By Richard Randall, and scope of a witness’s invocation of Defender Attorney his or her Fifth Amendment privilege Page 13 against self-incrimination. Although criminal defendants also have this privilege, this article will only focus Formation of a New Committee on on witnesses that are not criminal defendants. Diversity and Inclusion By Kimberly Campbell, I. Legal Basis for Invocation Human Resource Analyst Page 15 The Fifth Amendment of the United States Constitution and Article 2, Section 10 of the Arizona Constitution both guarantee all individuals a privilege against compelled self-incrimination in a criminal proceeding. Opinion Summaries July through September, 2020 The Fifth Amendment’s privilege is applied to the States through the Page 16 Fourteenth Amendment.²

II. Scope of the Protection Trial Results A. Who can invoke? July through September, 2020 Page 32 The Fifth Amendment privilege against self-incrimination protects all witnesses in any type of proceeding from being compelled to testify about matters “that [show] or might tend to show that the person for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 2 committed a crime.”³ The privilege is held by the individual witness, can only be invoked by that witness, and thus, cannot be invoked to protect a third party.⁴ Moreover, the privilege protects both the innocent and the guilty; thus, a witness can assert innocence and still invoke the privilege.⁵ B. When does it apply? A witness who seeks to invoke must reasonably apprehend danger of incrimination from being compelled to testify.⁶ The invoking witness “must be faced with real and substantial risks.”⁷ The privilege applies even if further prosecution is improbable.⁸ Moreover, even if direct examination would not cause a witness to incriminate himself, the witness can still invoke the Fifth Amendment if cross examination will do so.⁹ Generally, “where there can be no further incrimination, there is no basis for the assertion of the privilege.”¹⁰ Accordingly, the privilege exists until all appeals have been exhausted, including any petitions for post-conviction relief, and “the judgement of conviction is final.”¹¹ C. What is protected? “[T]he privilege against self-incrimination should be interpreted liberally in favor of those to be protected.”¹² It applies “not only to answers which would in and of themselves support a criminal conviction, but also to answers which would furnish a link in the chain of evidence needed to prosecute.”¹³ However, the Fifth Amendment does not protect individuals from being compelled to provide fingerprints, be photographed, have measurements taken, or to speak or write for identification purposes.¹⁴ III. The Court’s Procedure for Determining Whether the Witness’s Invocation is Valid The court must make the ultimate determination of whether a witness may properly invoke the privilege.¹⁵ When a witness seeks to invoke the privilege, the trial court must: (1) determine whether the invoking witness has a valid privilege claim, and (2) ensure the witness does not exceed the scope of the privilege by asserting it improperly. The court must determine whether a witness’s invocation is proper as to each question asked.¹⁶ To make this determination, the court must obtain “extensive knowledge of the case.”¹⁷ However, “[t]he requirement of ‘extensive knowledge’ is not necessarily synonymous with an extensive amount of detailed information.”¹⁸ There are a few ways the court can gain this necessary knowledge. A. Ex Parte In Camera Hearing There is a strong preference for courts to hold an ex parte in camera hearing, where the court may directly question the witness and the witness’s counsel, review each parties’ questions for the witness, and consider whether there might be a risk of incrimination.¹⁹ An ex parte in camera hearing saves time by allowing judges to make a pre-trial determination outside the presence of the jury. It is also a safe way for the witness to establish his or her basis for invoking without giving the State any privileged information that is protected by the privilege itself. When requesting an ex parte in camera hearing, attorneys should also consider requesting that the parties (State and defense) submit their intended questions for the witness to the court for consideration.²⁰ This can be advantageous because it is often difficult to articulate potential risks of incrimination without knowing what the parties intend to illicit from the witness. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 3

B. Other Procedures Where a court “can gain the necessary information by other means,” an ex parte in camera hearing is not necessarily required, nor is directly questioning the witness himself.²¹ This can be accomplished through questioning the parties’ counsel regarding what questions they intend on asking the witness, reviewing prior statements the witness has made in the case, or any other process that will enable the judge to gain the necessary knowledge. ²² In some cases, a judge may be able to make a determination after hearing the State’s case-in-chief and all or part of the defense’s case-in-chief.²³ Alternatively, some Superior Court judges in Maricopa County have opted to make the determination while the witness is on the stand. In a recent case in which a client was a witness, the judge had both the witness and attorney sit in the witness box. Then, as each question was asked, the witness could consult with the attorney and invoke when advised to do so. There is no case law expressly supporting or recommending this approach, other than the case law that suggests “other means” may be used to gain the necessary knowledge. Therefore, because each case is unique, attorneys should advocate for a procedure that would be most advantageous to their clients and approach these requests on a case-by-case basis. IV. Witness’s Burden of Proof The witness need not demonstrate that his or her answers will subject him or her to prosecution, the witness must “establish a factual predicate from which the court can, by use of ‘reasonable judicial imagination’ (aided by suggestions of counsel), conceive of a sound basis for the claim.”²⁴ To establish a factual predicate, the witness need only provide “very general, circumstantial terms to the reasons why he feels he might be incriminated…”²⁵ Thus, “it need only be evident from the implications of the question, in the setting in which it [is] asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”²⁶ Accordingly, if there might be a danger of self-incrimination, the court must uphold the privilege, even if the witness hasn’t or can’t demonstrate that answering the question definitively would incriminate him or her.²⁷ V. Blanket Assertions vs. Question-by-Question Assertions A witness cannot assert a blanket invocation without first establishing that each question will seek an incriminating response.²⁸ “When all the questions clearly seek incriminating testimony, however, a party may be excused from separately answering each question.”²⁹ Conversely, if there are some questions that would not subject the witness to potential self-incrimination (i.e., would elicit non-privileged information), the witness cannot invoke for those questions and can be compelled to answer them.³⁰ Accordingly, where it is not clear that all questions seek incriminating testimony, the witness might need to make a question-by-question assertion of the privilege. Moreover, a witness cannot voluntarily testify about privileged information, then invoke when he is asked details about that information.³¹ However, a witness may testify regarding non-privileged information and then invoke once questioning begins to pose a risk of incrimination. If this happens, the court then has the discretion to decide whether to strike the witness’s testimony.³² For example, what often happens is that a witness testifies fully on direct examination, but then invokes for questions asked on cross-examination that exceed the scope covered on direct. One significant problem with this is that if the invoking witness is the State’s witness, the witness’s refusal to for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 4 testify on cross can potentially violate the defendant’s Sixth Amendment right to cross-examination through the Confrontation Clause.³³ In these situations, the court must strike the witness’s testimony, either in whole or in part, where a witness refuses to respond to inquiries regarding matters (1) “elicited by the state on direct examination,” or (2) “tending to establish untruthfulness with respect to specific events of the crime charged.”³⁴ However, the witness’s testimony need not be stricken if the witness only testified about “collateral matters or cumulative matters involving general credibility.”³⁵ VI. Whether a Witness Must Invoke Before the Jury – Rule 403 Analysis In Arizona, earlier cases held that both the defense and the State had an absolute right to call an invoking witness and compel the witness to invoke before the jury.³⁶ However, modern Arizona cases now hold that this right is not absolute and it is within the court’s discretion to decide whether to require an invoking witness to invoke before the jury.³⁷ Applying what is often referred to as the “Rule 403 analysis,” a court “may refuse to allow the [invoking] witness to be called if it finds that the benefits to be gained will be outweighed by the danger of prejudice.”³⁸ Thus, courts should only require an invoking witness to invoke before the jury if a legitimate purpose would be served by doing so.³⁹ Proper purposes can include cases where “it is possible that the witness will not exercise his privilege or will answer some questions and not others,” or “to provide the jury an explanation of the failure to call a witness who ordinarily would be expected to testify in order to prove the charge or establish the defense.”⁴⁰ However, whether testimony will be forthcoming or can be compelled “will ordinarily be put to the strongest test if the witness is forced to exercise the privilege in open court, before judge, counsel and jury.”⁴¹ Furthermore, there are situations in which courts must exclude an invoking witness from being called.⁴² In Namet v. United States, the United States Supreme Court laid out two grounds upon which calling invoking witnesses to testify would be error.⁴³ The first one being prosecutorial misconduct, where “the Government makes a conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege,” including when a prosecutor makes adverse inferences regarding the invocation during closing argument.⁴⁴ The second ground exists where “inferences from a witness' refusal to answer add[] critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudice[s] the defendant.”⁴⁵ Accordingly, the court must exclude an invoking witness if under the circumstances of the particular case, calling the invoking witness would be a deliberate attempt to benefit from the witness’s refusal to testify.⁴⁶ When analyzing the second principle of Namet regarding the “critical weight” issue, courts may consider certain factors.⁴⁷ These factors include: (1) the government knew the witness would invoke the privilege; (2) the questions propounded depicted the alleged offense in its entirety; blanket (3) the testimony sought was a principal source of support for the government's case; (4) the witness's refusal to testify was not a mere incident in the course of his other testimony; (5) the witness's refusal to testify was not an isolated incident in an otherwise complex trial but was, rather, a major feature; [and] (6) the court did not meaningfully instruct the jury to disregard any inferences from the invocation of the privilege.⁴⁸ for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 5

In State v. Corrales, the Arizona Supreme Court applied the Namet principles.⁴⁹ The court held that merely calling two witnesses whom the prosecutor knew would invoke, did not violate Namet.⁵⁰ However, although the court noted the scarcity of cases that have found error where a witness is called to the stand just to invoke before the jury without being subjected to any incriminating questions, it acknowledged that it could “easily hypothesize situations where the prosecution could add critical weight to its case merely by putting the witness on the stand.”⁵¹ An example of this would be, “if a defendant were charged with selling narcotics and the defendant denied that the transaction involved drugs, forcing the buyer to claim the privilege before the jury might well lend critical weight to the state's case.”⁵² The prosecutor in Corrales, however, did not just call the witnesses to invoke before the jury. Instead, the prosecutor continued asking one of the witnesses incriminating questions after he had already invoked.⁵³ The court held “that continuing to question the witness after his unequivocal, firm invocation of the testimonial privilege had made it clear that he would not answer questions, coupled with the phrasing of the subsequent questions, violated both aspects of the Namet rule.”⁵⁴ VII. A Witness’s Fifth Amendment Rights VS. A Defendant’s Sixth Amendment Rights A criminal defendant has the right to confront witnesses against him and to present a defense under the Sixth Amendment. See U.S. Const. amend. XI. However, a criminal defendant’s Sixth Amendment “right to compulsory process must yield to…” a witness’s valid invocation of his Fifth Amendment privilege.⁵⁵ VIII. Whether the State and/or Court May Advise a Witness of the Consequences of Invoking When a witness seeks to invoke, the prosecutor and/or the trial judge may advise the witness of the potential consequences of invoking.⁵⁶ However, these advisements must be within limits.⁵⁷ Thus, a prosecutor can inform a witness of potential impacts of his testimony and a judge may advise him of the consequences for giving false testimony.⁵⁸ But, a prosecutor cannot engage in witness intimidation, such as, threatening a perjury charge.⁵⁹ IX. An Invoking Witness is “Unavailable” for Hearsay Purposes A witness who invokes, is “unavailable” for purposes of the hearsay rules.⁶⁰ Although it is beyond the scope of this article, it is important to keep in mind that rules of evidence may still allow introduction of an invoking witness’s prior statements under the hearsay exceptions for unavailable declarants.⁶¹ X. State Granted Use Immunity When a witness has a valid privilege claim, the State has the discretion to offer use-immunity under Arizona Revised Statutes §§ 13-4064 or 41-1066.⁶² The authority to grant immunity rests solely with the State.⁶³ “To pass constitutional muster,” the granted immunity must be “no less extensive than the fifth amendment privilege against self-incrimination.”⁶⁴ If a witness “refuses to testify after being granted immunity and after being ordered to testify as aforesaid, he may be adjudged in contempt and committed to the county jail.”⁶⁵ XI. Improper Arguments Juries are not permitted to draw negative inferences of guilt based on a witness’s invocation.⁶⁶ Accordingly, where a witness has a valid privilege claim and cannot be compelled to testify, counsel may not argue an adverse inference regarding an opposing party’s failure to call the invoking witness.⁶⁷

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XII. Waiver of the Privilege Although the privilege against self-incrimination can be waived, that waiver applies only to the proceeding in which the waiver occurred.⁶⁸ Nevertheless, where a witness’s testimony at a prior proceeding is the basis for her conviction, she may be compelled to testify at a later proceeding about that testimony, so long as her conviction is final at the time of the later proceeding. However, if questioning goes beyond the factsn o which the conviction is based, the privilege may be asserted as to all facts that might incriminate the witness.⁶⁹ In Nelson v. Hannah, the prosecution sought to call Nelson as a witness at her codefendant’s trial after Nelson had been convicted.⁷⁰ “At her trial, [Nelson] testified about her involvement in the events which formed the basis of the charge in her case.”⁷¹ Subsequently, when asked to testify at a deposition for the codefendant, Nelson invoked.⁷² The Arizona Court of Appeals held that since Nelson – if she was compelled to testify – would be required “to answer questions which conceivably will extend beyond what was covered in her trial, thereby leading to the filing of new criminal charges against her, her invocation of her Fifth Amendment privilege was well-founded.”⁷³ The court reasoned that a witness’s decision to testify in one proceeding, such as her own trial, does not constitute a waiver of the privilege at a subsequent independent proceeding.⁷⁴ Although a witness cannot be prosecuted a second time for the same charge she has already been convicted of, she can still invoke where her “answers to the questions might fur-nish a ‘lead’ to information which could be used to procure [her] conviction on a charge based on some other offense committed on the same day or on a charge based on the same or another offense committed on some other day, even the following day.”⁷⁵ CONCLUSION Because there are many variables to keep in mind when a witness wants to invoke, it is important to approach the process on a case-by-case basis. An attorney with a client seeking to invoke as a witness, should determine: 1) what real and substantial risks of incrimination might exist; (2) which procedure to request the court to apply; (3) how to meet the burden of proof without providing privileged information to the court; (4) whether you can prevent the witness from being compelled to invoke in front of the jury; (5) what conflicting rights may be implicated (e.g., defendant’s sixth amendment rights); (6) whether the witness gave prior testimony and how that affects an invocation in the present proceeding; (7) whether immunity might be available; and (8) the scope and extent of any potential waivers of the privilege. ______

¹ J. Livermore, R. Bartels & A. Hameroff, Arizona Practice, Law of Evidence § 501.1, at 165 (4th ed. 2000). ² See Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492 (1964). ³ State v. Ott, 167 Ariz. 420, 425, 808 P.2d 305, 310 (Ct. App. 1990) (citing Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322 (1973)). ⁴ See Rogers v. United States, 340 U.S. 367, 370–71, 71 S. Ct. 438, 440–41 (1951); Flagler v. Derickson, 134 Ariz. 229, 231, 655 P.2d 349, 351 (1982); State v. Maldonado, 181 Ariz. 208, 210, 889 P.2d 1, 3 (Ct. App. 1994). ⁵ See Ohio v. Reiner, 532 U.S. 17, 22, 121 S. Ct. 1252, 1255 (2001); see also Ullmann v. United States, 350 U.S. 422, 427, 76 S. Ct. 497, 501 (1956); Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 818 (1951). ⁶ See State v. Mills, 196 Ariz. 269, 276, 995 P.2d 705, 712 (Ct. App. 1999). ⁷ Id. at 277, 995 P.2d at 713 (citation omitted). for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 7

⁸ See Carter v. United States, 684 A.2d 331 (D.C. 1996); see also United States v. Miranti, 253 F.2d 135 (2d Cir. 1958) (holding that even a remote threat of a second prosecution is valid grounds to invoke the Fifth Amendment). ⁹ See Mills, 196 Ariz. at 277, 995 P.2d at 713 (finding that a witness cannot be compelled to testify where he would incriminate himself on cross- examination). ¹⁰ Mitchell v. United States, 526 U.S. 314, 326, 119 S. Ct. 1307, 1314 (1999); see also State v. Sanchez-Equihua, 235 Ariz. 54, 59, 326 P.3d 321, 326 (Ct. App. 2014). ¹¹ State v. Rosas-Hernandez, 202 Ariz. 212, 216, 42 P.3d 1177, 1181 (Ct. App. 2002); see also e.g., Mitchell, 526 U.S. at 325, 11 S. Ct. at 1313 (holding a guilty plea does not “complete[] the incrimination of the defendant,” and thus, the privilege still applies at sentencing); State v. Corrales, 138 Ariz. 583, 587, 676 P.2d 615, 619 (1983); State v. McElyea, 130 Ariz. 185, 187, 635 P.2d 170, 172 (1981); State v. Gretzler, 126 Ariz. 60, 88, 612 P.2d 1023, 1051 (1980), holding modified by State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983). ¹² Wohlstrom v. Buchanan, 180 Ariz. 389, 394, 884 P.2d 687, 692 (1994); see also Ott, 167 Ariz. at 426, 808 P.2d at 311 (“The broad scope of the privilege can no longer be questioned. In determining whether the privilege can be invoked, ‘a court should construe the scope of the privilege liberally and not in a hostile or niggardly spirit.’”). ¹³ Thoresen v. Superior Court In & For Maricopa Cty., 11 Ariz. App. 62, 66, 461 P.2d 706, 710 (1969) (citing Hoffman, 341 U.S. at 486, 71 S.Ct. at 818). ¹⁴ See Schmerber v. California, 384 U.S. 757, 763–64, 86 S. Ct. 1826, 1832 (1966). ¹⁵ See e.g., Thoresen, 11 Ariz. App. at 66, 461 P.2d at 710 (citing Hoffman, 341 U.S. at 486, 71 S.Ct. at 818). ¹⁶ See e.g., Hoffman, 341 U.S. at 486, 71 S.Ct. at 818; Ott, 167 Ariz. at 426, 808 P.2d at 311 (holding that a witness cannot assert a blanket invocation without establishing that each question seeks an incriminating response); Thoresen, 11 Ariz. App. at 66–67, 461 P.2d at 710–11 (holding that a witness cannot invoke before questions are offered). ¹⁷ State v. McDaniel, 136 Ariz. 188, 194, 665 P.2d 70, 76 (1983), abrogated on other grounds by State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989). ¹⁸ Rosas-Hernandez, 202 Ariz. at 217, 42 P.3d at 1182. ¹⁹ See e.g., Id.; Mills, 196 Ariz. at 277, 995 P.2d at 713; Maldonado, 181 Ariz. at 210, 889 P.2d at 3; State v. Cornejo, 139 Ariz. 204, 207, 677 P.2d 1312, 1315 (Ct. App. 1983); McDaniel, 136 Ariz. at 194, 665 P.2d at 76. Other courts and circuits have also regularly utilized this procedure. See e.g., United States v. Melchor Moreno, 536 F.2d 1042, 1046, 1049 (5th Cir.), opinion supplemented on denial of reh'g, 543 F.2d 1175 (5th Cir. 1976) (“A court must make a particularized inquiry, deciding, in connection with each specific area that the questioning party wishes to explore, whether or not the privilege is well- founded”); United States v. Argomaniz, 925 F.2d 1349, 1355 (11th Cir. 1991) (finding that an assertion of the privilege must be reviewed “on a question-by- question basis,” which is best “accomplished in an in camera proceeding wherein” the invoking witness “is given the opportunity to substantiate his claims of the privilege,” and the “court is able to consider the questions asked”); Com. v. Pixley, 77 Mass. App. Ct. 624, 627, 933 N.E.2d 645, 649 (2010) (finding it proper for “the judge [to] conduct an in camera hearing with the witness and the witness's counsel at which the witness will be required to disclose enough additional information to permit the judge to make the determination”); United States v. Duncan, 704 F. Supp. 820, 822–23 (N.D. Ill. 1989) (upon witness’s request, court will consider in camera submission to resolve witness's assertion of self-incrimination privilege); King v. Olympic Pipeline Co., 104 Wash. App. 338, 355 n. 34, 16 P.3d 45, 54 (2000), as amended on reconsideration (Feb. 14, 2001) (“The procedure for ruling on the propriety of an invocation of a Fifth Amendment privilege is ordinarily an in camera proceeding on a closed record”); Simms v. Vannoy, No. CV 18-6748, 2019 WL 7878909, at *17 (E.D. La. June 12, 2019), report and recommendation adopted, No. CV 18-6748, 2019 WL 6492437 (E.D. La. Dec. 3, 2019) (upholding the trial court’s use of an ex parte hearing to determine applicability of a witness’s assertion of privilege); Acord v. Saenz, No. CIV.A. H-09-2587, 2009 WL 2870009, at *9 (S.D. Tex. Aug. 28, 2009) (finding it proper to hold “a brief ex parte hearing … to determine whether the Fifth Amendment privilege applied”); United States v. Farha, No. 8:11-CR-115-T-30MAP, 2012 WL 12964913, at *2 (M.D. Fla. Sept. 27, 2012) (recognizing “that ex parte and in camera proceedings” are appropriate “for determining the applicability of a privilege in a criminal matter”). ²⁰ See Rosas-Hernandez, 202 Ariz. at 217, 42 P.3d at 1182 (upholding a witness’s invocation, in large part, because the defendant did not provide the questions he intended to ask the witness to the court for consideration…”); Mills, 196 Ariz. at 277, 995 P.2d at 713 (party seeking to call invoking witness “set out in detail the testimony he hoped to elicit”); Maldonado, 181 Ariz. at 210, 889 P.2d at 3 (during the in camera hearing, the court questioned counsel regarding what questions would be asked and their purpose). ²¹ See e.g., Rosas-Hernandez, 202 Ariz. at 217, 42 P.3d at 1182; State v. Harrod, 218 Ariz. 268, 276, 183 P.3d 519, 527 (2008); Maldonado, 181 Ariz. at 211, 889 P.2d at 3 (finding that direct questioning is not mandatory; the court merely must obtain enough knowledge of the case to support a valid invocation). ²² See e.g., Mills, 196 Ariz. at 276, 995 P.2d at 712; Rosas-Hernandez, 202 Ariz. at 217–18, 42 P.3d at 1182–83; Maldonado, 181 Ariz. at 211, 889 P.2d at 3. ²³ Harrod, 218 Ariz. at 276, 183 P.3d at 527. ²⁴ Thoresen, 11 Ariz. App. at 66, 461 P.2d at 710. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 8

²⁵ Cornejo, 139 Ariz. at 207, 677 P.2d at 1315; see also e.g., Thoresen, 11 Ariz. App. at 67, 461 P.2d at 711 (“[T]he basis for the claim of privilege need not be spelled out ‘in prurient detail.’”); McPherson v. McPherson, 112 Idaho 402, 405, 732 P.2d 371, 474 (Ct. App. 1987) (finding that a witness need only “sketch a plausible scenario” of why the answer might be incriminating); State ex rel. Harry Shapiro, Jr., Realty & Inv. Co. v. Cloyd, 615 S.W.2d 41, 45 (Mo. 1981) (“[W] here risk of incrimination is not otherwise obvious, witness or attorney must describe in general terms a ‘rational basis’ for concluding that the answer would be incriminating”). ²⁶ Hoffman, 341 U.S. at 486–87, 71 S.Ct. at 818. ²⁶ Hoffman, 341 U.S. at 486–87, 71 S.Ct. at 818. ²⁷ Cornejo, 139 Ariz. at 207, 677 P.2d at 1315 (citation omitted); see also e.g., Hoffman, 341 U.S. at 486, 71 S.Ct. at 818 (recognizing that requiring a claim of privilege to be proven with certainty, would mean the witness would be “compelled to surrender the very protection which the privilege is designed to guarantee”); Thoresen, 11 Ariz. App. at 66, 461 P.2d at 710 (holding that “[a] person claiming the privilege may not be compelled to do more than show that the answer is likely to be dangerous to him, else he will be forced to disclose those very facts which privilege protects”) (internal quotations omitted). ²⁸ See e.g., Ott, 167 Ariz. at 426, 808 P.2d at 311; Hoffman, 341 U.S. at 486, 71 S.Ct. at 818 (holding the court must determine whether a witness’s invocation is proper as to each question the witness will be asked); Thoresen, 11 Ariz. App. at 66–67, 461 P.2d at 710–711; United States v. Moore, 682 F.2d 853, 856 (9th Cir. 1982). ²⁹ Ott, 167 Ariz. at 426, 808 P.2d at 311 (citing United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980), and State v. Ethridge, 126 Ariz. 8, 10, 612 P.2d 59, 61 (Ct. App. 1980)). ³⁰ See Namet v. United States, 373 U.S. 179, 188, 83 S. Ct. 1151, 1155–56 (1963). ³¹ See Mitchell, 526 U.S. at 322, 119 S. Ct. at 1312 (“A witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the trustworthiness of the statements and diminishing the integrity of the factual inquiry”). ³² See e.g., State v. Dunlap, 125 Ariz. 104, 105, 608 P.2d 41, 42 (1980); United States v. Cardillo, 316 F.2d 606, 611 (2d Cir. 1963). ³³ See Dunlap, 125 Ariz. at 105, 608 P.2d at 42. ³⁴ Id. at 106; 608 P.2d at 43. ³⁵ Id. ³⁶ See e.g., State v. Encinas, 132 Ariz. 493, 495–96, 647 P.2d 624, 626–27 (1982); Gretzler, 126 Ariz. at 88, 612 P.2d at 1051; State v. Cota, 102 Ariz. 416, 421, 432 P.2d 428, 433 (1967) (finding that even if a witness has a valid privilege claim, that “does not disqualify him from being called” as a witness to invoke in front of the jury), holding modified by McDaniel, 136 Ariz. at 195 (retreating from Cota “insofar as [it suggests] an absolute right to call witnesses regardless of the fact that they may properly choose to invoke their fifth amendment privilege in response to all relevant questions”). ³⁷ See State v. Henry, 176 Ariz. 569, 580, 863 P.2d 861, 872 (1993); see also Maldonado, 181 Ariz. at 210, 889 P.2d at 3; Corrales, 138, Ariz. at 588, 676 P.2d at 620; McDaniel, 136 Ariz. at 194, 665 P.2d at 76; Mills, 196 Ariz. at 277, 995 P.2d at 713; State v. Doody, 187 Ariz. 363, 376, 930 P.2d 440, 453 (Ct. App. 1996); Namet, 373 U.S. at 189, 83 S. Ct. at 1156. ³⁸ Corrales, 138 Ariz. at 588–89, 676 P.2d at 620–21 (emphasis added) (applying a Rule 403 analysis to determine “whether the interest of the person calling the witness outweighs the possible prejudice resulting from the inferences the jury may draw from the witness’s exercise of the privilege.”); see also e.g., Mills, 196 Ariz. at 277, 995 P.2d at 713; Doody, 187 Ariz. at 376, 930 P.2d at 453; Maldonado, 181 Ariz. at 211, 889 P.2d at 4 (finding no error in excluding invoking witness); Henry, 176 Ariz. at 581, 863 P.2d at 873 (court can exclude an invoking witness where there is no purpose in requiring the witness to invoke before the jury); McDaniel, 136 Ariz. at 194, 665 P.2d at 76 (holding that if a judge determines a witness has a valid privilege claim, “then that witness may be totally excused…”); Namet, 373 U.S. at 189, 83 S. Ct. at 1156; United States v. Maloney, 262 F.2d 535 (2d Cir. 1959) (finding error where the court allowed the State to call several alleged accomplices and force each to invoke the privilege before the jury). ³⁹ See Corrales, 138 Ariz. at 588–89, 676 P.2d at 620–21. ⁴⁰ Id. at 588, 676 P.2d at 620. ⁴¹ Id. ⁴² See e.g., id. at 588–89, 676 P.2d at 620–21. ⁴³ Namet, 373 U.S. at 186–87, 83 S. Ct. at 1154–55. The constitutional bases of the Namet principles have also been applied to the states. See Douglas v. State of Ala., 380 U.S. 415, 85 S. Ct. 1074 (1965). ⁴⁴ Namet, 373 U.S. at 186, 83 S. Ct. at 1154–55. ⁴⁵ Id. at 187, 83 S. Ct. at 1155. ⁴⁶ Id. at 189, 83 S. Ct. at 1156. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 9

⁴⁷ See Corrales, 138 Ariz. at 594, 676 P.2d at 626 (citing Fletcher v. United States, 332 F.2d 724, 726 (D.C. Cir. 1964)). ⁴⁸ Id. ⁴⁹ Id. ⁵⁰ Id. at 587, 676 P.2d at 619. ⁵¹ Id. at 589 n. 4, 676 P.2d at 621. ⁵² Id. ⁵³ Id. at 594, 676 P.2d at 626. ⁵⁴ Id. Moreover, the court held that the prosecutor’s conduct also “violated defendant's sixth amendment right to confrontation of witnesses.” Id. (citing Douglas, 380 U.S. 415, 85 S. Ct. 1074). ⁵⁵ See Sanchez-Equihua, 235 Ariz. at 59, 326 P.3d at 326 (citing Rosas-Hernandez, 202 Ariz. at 216, 42 P.3d at 1181). ⁵⁶ See State v. Jones, 197 Ariz. 290, 300–02, 4 P.3d 345, 355–57 (2000). ⁵⁷ Id. ⁵⁸ Id. ⁵⁹ Id. ⁶⁰ See Ariz. R. Evid. 804(a)(1); see also State v. Gortarez, 141 Ariz. 254, 260, 686 P.2d 1224, 1230 (1984). ⁶¹ See Ariz. R. Evid. 804(b)(1)–(6). ⁶² See Ott, 167 Ariz. at 426, 808 P.2d at 311 (“The privilege against self-incrimination does not, however, absolutely bar the state from obtaining incrimina- tory testimony. The Constitution permits the state to compel testimony if a grant of immunity ensures that neither the compelled testimony nor its fruits are available for use in criminal proceedings.”). ⁶³ See State v. Verdugo, 124 Ariz. 91, 94, 602 P.2d 472, 475 (1979); see also Doody, 187 Ariz. at 376, 930 P.2d at 453 (finding no error where State granted immunity to a State’s witness, but not a defense witness; the court held that “[t]he state's refusal to grant a particular witness immunity does not violate a defendant's right to due process absent prosecutorial misconduct or, alternatively, a showing that the witness would present clearly exculpatory evidence and that the state has no strong interest in withholding immunity”). ⁶⁴ State v. Gertz, 186 Ariz. 38, 43, 918 P.2d 1056, 1061 (Ct. App. 1995) (citing Kastigar v. United States, 406 U.S. 441, 453, 92 S. Ct. 1653, 1660 (1972)). ⁶⁵ A.R.S. § 13-4064. ⁶⁶ See e.g., Corrales, 138 Ariz. at 587, 676 P.2d at 619. ⁶⁷ Id. ⁶⁸ Doody, 187 Ariz. at 375–76, 930 P.2d at 452–53; see also e.g., Mitchell, 526 U.S. at 316, 321, 11 S. Ct. at 1309, 1311 (a plea agreement and the corre- sponding factual basis do not constitute a waiver of the privilege at sentencing); Nelson v. Hannah, 122 Ariz. 296, 297, 594 P.2d 550, 551 (Ct. App. 1979) (waiver of the privilege in one proceeding does not affect the rights of a witness or the accused in another independent proceeding). ⁶⁹ See Nelson, 122 Ariz. at 297–98, 594 P.2d 551–52; see also Mitchell, 526 U.S. at 321, 11 S. Ct. at 1311. ⁷⁰ Nelson, 122 Ariz. at 297, 594 P.2d 551. ⁷¹ Id. ⁷² Id. ⁷³ Id. at 297–98, 594 P.2d 551–52. ⁷⁴ Id. at 297, 594 P.2d 551 (citing Ottomano v. United States, 468 F.2d 269, 273–74 (1st Cir. 1972) (rejecting the argument that “since Ottomano had already been convicted … he was subjected to no real danger of further incrimination by the requirement that he testify”), disapproved of on different grounds by United States v. Perez, 658 F.2d 654 (9th Cir. 1981)). ⁷⁵ Id. (citation omitted).

for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 10 Defending at the Grand Jury By Ibrahim Ali, Defender Attorney “This case has just gotten a bit more complicated,” read the prosecutor’s email. As a new public defender, still in training, I did not really understand what he meant. I read the email again, this time to my supervisor, and I could see his jaw hit the floor. “They’re asking for a Bashir” replied my supervisor. The case was set in the Regional Court Center, or “RCC” as it is known, the preliminary hearing court in Maricopa County. We affirmed the preliminary hearing date, and I sent a Trebus letter to the State providing some detail of my client’s proposed testimony and his exculpatory evidence before receiving the email from the prosecutor. Rule 12.5 of the Arizona Rules of Criminal Procedure allows the subject of a grand jury to submit a written request to speak before them: “A person under investigation by the grand jury may be compelled to appear before the grand jury, or may be permitted to appear upon the person’s written request. The person must be advised of the right to remain silent and the right to have counsel present to advise the person while giving testimony.” Ariz. R. Crim. P. 12.5. Trebus v. Davis held that a county attorney must inform a grand jury that the accused either requests to appear before the grand jury or has submitted exculpatory evidence. It also held that the evidence being presented must be “clearly exculpatory” to invoke an obligation on the part of the prosecutor. Trebus v. Davis In & For Cty. of Pima, 189 Ariz. 621, 625, 944 P.2d 1235, 1239 (1997). Pursuant to Bashir v. Pineda, the prosecutor is then required to convey that information to the grand jury in an impartial manner. “Failure to do so removes the choice from the grand jury and justifies remanding the indictment.” Bashir v. Pineda, 226 Ariz. 351, 355, 248 P.3d 199, 203 (Ct. App. 2011). The Trebus letter in this case was prepared well in advance of the preliminary hearing date – the deadline for when the state would need to have a supervening indictment. Late on a Friday afternoon, the prosecutor emailed me back. “This case has just gotten a bit more complicated. I just presented to the Grand Jury, and they would like to hear testimony from your client. Please let your client and the jail know the Grand Jury has been reset.” Now I had to figure out what exactly happens at a grand jury and what exactly happens when the subject of a grand jury investigation is present at one. Unfortunately for me, this isn’t a very common thing to happen, so there isn’t a plethora of information on what to do when your client gets Bashir’ed. But one thing is clear, everything is on-record and is sworn testimony, and I, as defense counsel, am not allowed to speak to anyone other than my client. The second-part of Rule 12.5 states, “If counsel accompanies the person under investigation, counsel may not communicate, or attempt to communicate, with anyone other than the person. The foreperson may expel counsel from the grand jury session if counsel violates this rule. Ariz. R. Crim. P. 12.5. None of this sounded good. My client will be a potted-plant against the state, and we will have no opportunity to clarify or rebut. I immediately went to county jail, where we discussed this major development and the very real risks, and we decided that this might just be worth a shot. Being dressed-out was non-negotiable. We were not going to allow the subject of a grand jury investigation to arrive in an orange jumpsuit and shackles and speak about his innocence. Thankfully, our office has services that provides clothing for clients at court, but this process typically requires more than a day of notice. We were informed Friday for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 11 evening; that upcoming Monday was a holiday, and the grand jury testimony was to be held on the very next day, Tuesday. This was going to be tricky. We needed more time; I emailed the prosecutor and laid out our issue. I argued that it would be prejudicial to have the client in shackles in front of the grand jury, and we simply didn’t have any time to clothe him with the current schedule of things. I asked, over email, to push back the grand jury testimony. Fortunately, the prosecutor was amenable to this, but he asked me to explicitly state over email that the client waived time, since pushing back the testimony would put us past the probable cause determination deadline. We were able to do just that, and the grand jury testimony was pushed back to the end of the week. The day of testimony came, and I met my client at the grand jury building. I had no idea where grand juries were held, so I asked the prosecutor to provide me the address. It was hidden in plain sight – small and windowless, right in the middle of downtown Phoenix. As soon as I walked in with my supervisor, we were asked to state our business by security – clearly the security officers were not used to unfamiliar-looking attorneys walking in. We met the prosecutor and his bureau chief in the hallway. It looked like there were only a few courtrooms on either side of the hallway, and the building was only one floor. The prosecutors immediately informed my supervisor and I that only one defense attorney would be allowed in. We decided it would be me. I asked to speak with my client before we proceeded, and the prosecutors said I could speak with my client while he was getting dressed in the basement. I had five minutes. The basement was large and full of empty holding cells. I saw dead cockroaches littered across the floor, everywhere. I found my client in one of the cells around a corner and saw that he was getting dressed into his suit with the help of two detention officers. I reminded him that everything would be on record upstairs and to stay on topic and not go off on tangents. He was ready to tell his story of innocence. We walked upstairs together and entered the courtroom through the gallery; we walked down the aisle as the grand jurors stared up at us blankly. They all sat in the gallery, with the foreman at one of the counsel tables. My suited- up client walked beside me, while the two detention officers stayed back by the doors. My client and I went to the front of the courtroom, and he was instructed to sit in the witness box – I was in a tiny, plastic chair next to the witness box. To describe the situation as awkward would be an understatement. One thing that immediately stuck out to me was how many prosecutors there were. There was a table where the jury box would be, with four or five prosecutors sitting there. The bench was empty, of course. After we sat down one of the prosecutors asked my client what his name and date of birth was. This was not the assigned prosecutor on our case, nor was it the bureau chief. My client was then asked if he had any statements to make, knowing that he has the right to remain silent. My client spoke. He told his story from start to finish, uninterrupted, and it took about ten minutes. Maybe longer. When he had nothing more to say, my client looked at me. I couldn’t speak, and I wasn’t even sure if I could whisper in his ear. We agreed that we would go outside and confer if I looked at him in his eyes, and at that moment I looked back at him, in his eyes. The prosecutor asked my client if he had anything else to say, and my client told the prosecutor that he wanted to speak with his attorney. We both stood up and slowly walked out of the courtroom. We conferred about his testimony for a few minutes and then stepped back in the courtroom. The prosecutor asked if there was anything else my client wanted to share, and my client spoke for another few minutes before he was finally done. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 12

After this, our assigned prosecutor stood up and began to ask my client questions. He was crossing my client. He asked my client a dozen or so questions before “resting.” This took around ten minutes or so. When the cross- examination ended, the other, unknown prosecutor stood up again. He asked the grand jury if any jurors had questions for my client. Their blank faces were silent. I didn’t like that. For whatever reason, I wanted them to have a million questions. But nothing. After a few seconds, the unknown prosecutor thanked us for our time and informed us that we could now leave. As soon as we exited the courtroom, I shook my client’s hand and told him that I would come to jail and discuss any updates as I received them. As we were leaving, we saw the arresting officer in our case making his way into the courtroom, in full uniform of course. I walked back to my office with my supervisor, who had been waiting in the hallway the entire time. I received an email from the prosecutor by the time I was back at my desk. “We will be filing a motion to dismiss for this case, and your client should be released from custody soon, the Grand Jury no-true-billed it.” My client was released from jail that night and called me a few days later, thanking me for believing him and fighting to give him that opportunity to tell his story. We laughed, wished each other the best, and then said good-bye to each other. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 13 The Eye for an Eye Principle, The Story of Cain and Abel, and The Gift of Mercy in Capital Jury Selection By Richard Randall, Defender Attorney Ask the next 25 people you see if they support the death penalty. If those people are an accurate sample of the country, about 13 of those people will tell you they support the use of the death penalty.¹ About six of those 25 people would use the phrase “an eye for and eye” as a reason they support the death penalty.² Many of us in the criminal defense bar immediately associate the eye for an eye principle with consequence based, prosecutor-leaning, rigid, judgmental, vindictive judging type people who could never be trusted to reach an objective decision in any criminal trial, let alone a sentencing decision where the possibility of death is at play. However, our rush to judgment may not be accurate in every case. More information is needed to accurately assess the core beliefs of each of those six people you asked about the death penalty. You need to know whether their reliance on the eye for an eye principle stems from an informed biblical view of punishment that might include an element of mercy, or from an attractiono t the vengeance laced personification of eth phrase in pop culture. An eye for an eye is a punishment principle espoused in the ancient Code of Hammurabi and the biblical books of Exodus, Leviticus and Deuteronomy. In the Bible, the phrase an eye for an eye is used to set the level of punishment that someone should receive for an injury they have caused to another person. In the 21st Chapter of the book of Exodus, God is quoted as having told Moses to tell the children of Israel that an injury caused by another person is to be punished according to the principle of an “eye for eye, tooth for tooth, hand for hand, foot for foot…”³ In the 24th chapter of the book of Leviticus, God si quoted as having told Moses to tell the children of Israel that “anyone who injures their neighbor is to be injured in the same manner: fracture for fracture, eye for eye, tooth for tooth.”⁴ In the book of Deuteronomy, Moses told the Children of Israel that, if a person falsely testifies against his brother, he should be dealt with in the way that he had intended to deal with the person he testified against; “Life will be for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”⁵ In other words, someone who causes an injury to someone else should suffer the same injury as the person they injured. It follows that a person who kills another person should be killed themselves. It can be argued that the eye for an eye biblical concept should be interpreted as a limiting principle. It is only an eye for an eye; it is not an eye and an arm for an eye. The punishment should be proportional to the crime. Biblical use of the phrase is principally about proportional retribution, not vigilante justice.⁶ Not only is the Bible’s use of the term an “eye for and eye” primarily focused on proportional retribution, there are stories and other concepts in the Bible that counter-balance even the punishment aspects of the eye for an eye principle. One of the more famous Bible stories indirectly dealing with an eye for an eye is the story of Cain and Abel. To set the stage, the Bible is a compilation of books arranged in a more-or-less chronological order. According to Genesis, the first book of the Bible, Adam and Eve initially conceived two children, Cain and Abel. Cain became a farmer, and Abel became a shepherd. Each of the brothers gave an offering to the Lord: Cain gave some of his crops, and Abel gave a choice firstborn from his herd. The Lord approved Abel’s offering, but the Lord did not approve of for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 14

Cain’s offering. Cain became angry and enticed Abel into a field where he killed him. Later, the Lord asked Cain where Abel was. Cain responded with the famous question, “am I my brother’s keeper?” The Lord replied to Cain that Abel’s spilled blood was crying to him from the ground. Interestingly, Cain was not put to death for having killed his brother, as would be required under the eye for and eye principle. Instead, the Lord severely punished Cain by taking away his ability to benefit from the soil and by making him a “restless wanderer.” There is more. Cain complained to the Lord that whoever found him would kill him. The Lord protected Cain and warned that, if anyone killed Cain, that person would suffer sevenfold retribution. The Lord also set a mark on Cain to protect him.⁷ Biblical scholars will tell you that the story of Cain and Abel occurred thousands of years before God spoke to Moses. The argument can be made that the eye for an eye principle is not an absolute. God did punish Cain in a way that affected him the rest of his life, but he did not want him killed. Another counter-balance to the eye for and eye principle is the idea of mercy. Mercy is the gift of leniency to someone deserving of punishment. There are 261 references to mercy in the King James translation of the Bible. The topic of mercy is included in 41 of the 66 books that make up the combined Old and New Testaments.⁸ Most of the prominent characters in the Bible were extended mercy. Moses, God’s rescuer of the children of Israel from Egyptian slavery, found mercy after killing an Egyptian when Moses was a young man. David, God’s king, found mercy after orchestrating the murder of Uriah to hide the fact that David had slept with Uriah’s wife and she had become pregnant. Paul, the writer of much of the New Testament, indirectly, and possibly directly, arrested and murdered Christians until he became one. Let’s go back to those six people who told you they followed the eye for an eye view of criminal punishment. If any of those six people embrace the biblical concepts of both an eye for an eye and mercy, our assessment of whether they could be trusted as jurors, especially in a capital case, might be alarming wrong. On the other hand, our assessment would be spot on if one or more of those six people you talked to invoked the eye for an eye principle because they align themselves with the vigilante, vengeance driven personal involvement in punishment, embodiment of the principle in popular culture. In popular culture, the principle has become the driving force behind anger fueled story lines premised upon the pursuit of personal vengeance. In the 1966 movie “An Eye for an Eye,” Robert Lansing and Patrick Wayne team up to get justice ftera the murder of Lansing’s wife and child. In the 1982 movie “An Eye for an Eye,” Chuck Norris leaves the police force to exact vengeance for his partner’s death. In the 1996 movie, “Eye for an Eye,” Sally Field murders a delivery man who had raped and murdered her daughter. And, in the 2019 Netflix movie “Eye for an Eye,” Nursing manager Louis Tosar exacts revenge on an elderly drug kingpin that had been involved in his brother’s death. Perhaps the most troubling use of the eye for an eye principle in literature is the controversial 1993 book “An Eye for an Eye” where author John Sack purports to document Eastern European Jews’ revenge against Germans in 1945.⁹ Returning, once again, to the six people you talked to about the eye for an eye principle. In order to get a true understanding of their beliefs, a thorough criminal defense attorney would ask more questions to accurately predict the ramifications of their allegiance to the principle in a criminal law setting. It woulde b interesting to know whether each of those people see the eye for an eye principle as a mechanism releasing them to execute personal vengeance, a God-dictated rule to be followed regardless of their personal feeling, or as an allegiance to a balanced biblical view that includes both justice and mercy. It could be that further inquiry will show that some of those people might be for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 15 difference makers in the ultimate question of whether your client should be extended the gift of mercy.

“The power of just mercy is that it belongs to the undeserving. It’s when mercy is least expected that it’s most potent—strong enough to break the cycle of victimization and victimhood, retribution and suffering. It has the power to heal the psychic harm and injuries that lead to aggression and violence, abuse of power, mass incarceration.”¹⁰

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¹ 2019 Gallup Penalty Poll

² Gallup Poll Release, 3/2/01 ³ King James Version ⁴ New International Version ⁵ Deuteronomy 19:21, New World Translation of the Holy Scriptures ⁶ An Eye for an Eye, November Coalition Oct/Nov. 1997, Paul Bischke ⁷ Genesis 4:1-18 ⁸ Sarata.com/bible/verses/about/mercy.html. ⁹ Sack, John, An Eye for an Eye: The Untold Story of Jewish Revenge Against Germans in 1945, Basic Books, 1993 ¹⁰ Bryan Stevenson, Just Mercy: A Story of Justice and Redemption

Formation of a New Committee on Diversity and Inclusion By Kimberly Campbell, Human Resources Analyst

The Maricopa County Office of the Public Defender is eager to announce the creation of a new program in response to employee recommendations for a more diverse and inclusive workplace. Several peer group members have volunteered to be part of this relevant initiative that is geared toward the education and training, recruitment and development, leadership training, community outreach, internal events, and individual recognitions that will inspire OPD to stand out not only internally but also in the community as a respected leader in diversity and inclusion. The first group meeting was energetic, full of ideas, and plenty of brainstorming. Everyone is getting geared up to start the process! Keep an eye out for upcoming activities and communications for this exciting addition to our office! for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 16 July - September 2020 Opinion Summaries Arizona Court of Appeals, Division One, by Jason Ceola, Defender Attorney Arizona Court of Appeals, Division Two, by Tammy Wray, Defender Attorney Arizona Supreme Court, by Meagan Swart, Defender Attorney United States Court of Appeals for the 9th Circuit, by Meghan White, Defender Attorney

U.S. v. Maher Obagi and U.S. v. Mohamed Salah, No. 18-50170 No. 18-50171 (July 17, 2020, United States Court of Appeals for the 9th Circuit) https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/17/18-50170.pdf Holding: Reversal of the convictions of both defendants and remand for further proceedings is necessary due to the government’s failure to disclose Brady information until after the close of evidence in a case where the government argued in closing that the witness the Brady information pertained to was independent and reliable. As part of one company’s very complicated mortgage fraud scheme, numerous individuals were indicted on charges of conspiracy to commit wire and bank fraud. Some employees of the company took plea deals and agreed to testify against other employees of the company. In Obagi and Salah’s trial, to bolster the government’s case, testimony was presented from three employees who never had to cut a deal with the government to avoid prosecution including Halime “Holly” Saad. Saad repeated the testimony of one of the employees who had cut a deal indicating that Obagi had instructed her to conceal kickback payments. The government relied heavily on her testimony in closing to bolster the credibility of the cooperating witness testimony. The Prosecutor repeatedly stressed in closing that Saad was an independent witness and had gained no benefit from the government. During a break between government and defense closing, a separate prosecutor who happened to be watching the closing contacted trial prosecution to inform them that Saad had already received immunity for testifying in a separate mortgage fraud investigation. This was then conveyed to the defense and trial court. After discussion, the trial court provided a jury instruction that Saad had received qualified immunity in another case, may have lied to the FBI, and that her testimony and the government’s arguments based on her testimony should not be considered by the jury for any purpose. Subsequently, 4750 pages of records pertaining to Saad’s criminal activity and deception were disclosed after the case had been submitted to the jury. A 1000 pages were received while the jury was deliberating. A motion for new trial was denied and both defendants were convicted. Ordinarily, juries are presumed to follow their instructions; had the disclosure occurred before the close of evidence, this presumption likely would have controlled here. Asking the defense to reframe their case at the last minute was “simply too much.” Id. at 12. The curative instruction was insufficient in that “it did not tell the jury that the government’s powerful closing was premised on a false narrative—Saad’s reliability” or that “defense counsel had presented the case one way only, only to learn afterwards that the truth was something else.” Id. at 13. The Court further stated that under these unique circumstances, it’s possible that no curative instruction would have been sufficient. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 17

State v. Jacob Ali Farid, No. 1 CA-CR 19-0527 (July 28, 2020, Arizona Court of Appeals, Division One) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CR%2019-0527%20Farid%20Opinion-- Final.pdf After a traffic stop in Mohave County, Farid was found with 214 packages each containing one ounce of marijuana labeled identifying them as “Medical Cannabis California” and indicating that they were packaged per California’s medical marijuana laws. Farid told officers he was traveling from Lake Tahoe to Houston. He was charged with and convicted of knowingly importing marijuana into the state—which is contained in the same statute that forbids “Transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer marijuana.” At issue was an answer given to a jury question, the answer stating that someone could be convicted upon proof that they knowingly transported marijuana for sale OR that they imported marijuana into Arizona—regardless of intent to sell. The court of appeals held that the plain language of the statute supported the judge’s answer to the jury question and that the words “for sale” modifies“ transport,” and does not modify the word “import”. Thus a conviction stands under A.R.S. § 13-3405.A.4 when marijuana is imported into the State even if not for sale.

State v. Luis Armando Vargas, CR-19-0071-PR (July 31, 2020, Arizona Supreme Court) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/State%20v%20Vargas%20Opinion.pdf Facts: A jury found Vargas guilty of several offenses, including first degree murder, and he was sentenced to natural life with a consecutive term of imprisonment. On appeal, he argued that the prosecutor engaged in a pervasive pattern of misconduct that cumulatively deprived him of the right to a fair trial. Because the trial attorney did not object to the misconduct, appellate counsel argued the court should review the claim for fundamental error. Vargas did not argue that each allegation, standing alone, was fundamental error. State responded and argued that Vargas waived his right to challenge most instances of alleged misconduct because he failed to object at trial and had not argued fundamental error as to each specific allegation on appeal. Court of appeals concluded that because he failed to set forth an argument of fundamental error for each allegation, he waived argument that an error occurred. The court of appeals affirmed his conviction and sentences. Holding (s): A defendant claiming fundamental error due to cumulative prosecutorial misconduct does not have to assert fundamental error for every allegation in order to preserve for review the argument that misconduct occurred. Rationale: Court first notes that cases addressing similar claims based on prosecutorial misconduct have not presented a consistent framework. Thus, to “harmonize” the case law, the court directs both litigants and appellate courts to use the framework set out in State v. Escalante, 245 Ariz. 135, 142 (2018). Consistent with the third prong (“the error was so egregious that he could not have possibly received a fair trial”), a defendant claiming cumulative error based on prosecutorial misconduct need not separately assert prejudice since a successful claim necessarily establishes the unfairness of a trial. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 18

“Accordingly, where a defendant raises a claim on appeal that multiple incidents of prosecutorial misconduct, for which he failed to object, cumulatively deprived him of a fair trial, consistent with Rule 31.10(a)(7) and Escalante, the defendant must: 1) assert cumulative error exists; 2) cite to the record where the alleged instances of misconduct occurred; 3) cite to legal authority establishing that the alleged instances constitute prosecutorial misconduct; and 4) set forth the reasons why the cumulative misconduct denied the defendant a fair trial with citation to applicable legal authority.” Id. at 6, ¶ 14. When applying this framework, Vargas indisputably argued that cumulative error entitled him to a new trial due to pervasive prosecutorial misconduct. Whether Vargas has carried his burden of persuasion to establish that misconduct did occur for each allegation and that they cumulatively denied him a fair trial is for the court of appeals to determine on remand. Vargas asked Court to distinguish between prosecutorial error and misconduct but since resolution of the case does not rest on this distinction, the Court declined to review it. Additionally, the State asked the court to clarify the standard of review between harmless error and fundamental error based on prosecutorial misconduct, but the Court declined to do so. Conclusion: Court vacated the court of appeals’ decision as to Vargas’s claim of cumulative error due to pervasive prosecutorial misconduct and remanded for a redetermination consistent with this Opinion.

E.H. v. Slayton, No. CR-19-0018-PR (August 4, 2020, Arizona Supreme Court) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CR190118PR.pdf Facts: Defendants Wilson and Hester pled guilty to charges of endangerment and child abuse in connection with the death of J.H. by a third defendant. Defendants Wilson and Hester entered into plea agreements in which they were jointly and severally liable for restitution to E.H., half-sister to the deceased who witnessed the abuse. Restitution in the plea agreements was capped at $500,000. E.H. objected to the plea agreement caps based on the constitutional and statutory rights of a victim to restitution. Trial court upheld the cap. Trial court also ordered E.H.’s attorney to sit in the gallery and only step in front of the bar when invited to do so to address a victim rights issue. Counsel filed a special action. Court of appeals noted that the trial court is required to order defendants to pay E.H. but declined to accept jurisdiction in the absence of evidence that E.H. was prejudiced by restitution caps. Holding(s): (1) The practice of placing a cap on the amount of restitution a defendant may be liable for in a plea agreement, without the victim’s consent, violates the right to restitution. There is no constitutional requirement to inform a defendant of a specific amount of restitution or to cap the amount of restitution that a court may order. (2) A lawyer representing a victim has a presumptive right to sit in front of the bar in the courtroom during a proceeding where a victim’s constitutional or statutory rights are at issue.

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Rationale: (1) Due Process Does Not Require Restitution Caps. State initially argued that case is not ripe for review, unless and until the restitution claim is denied because of the cap in the plea agreements. Court disagreed and said that the State and defendants, through the plea agreements, effectively waived her statutory right to restitution for her full economic losses. A victim may agree to a restitution cap as part of a plea agreement, and thereby forego her statutory right to full restitution, if that amount exceeds the cap, but the prosecutor may not do it for her. Based on prior case law regarding a defendant’s knowing, intelligent, and voluntary waiver under a plea agreement, restitution caps have been included in plea agreements under the belief that they are necessary to protect defendants’ due process rights. Relying on United States v. Ruiz, 536 U.S. 622, 629 (2002) and Fed. R. Crim. P. Rule 11(c)(1) advisory committee notes, the Court determines that due process does not require a court to inform a defendant of a specific amount of restitution or cap the amount that may be ordered when a defendant enters a plea agreement. And because this restitution cap is not constitutionally required, the Court overrules prior case law that required restitution caps for a knowing and voluntary plea. Further, restitution caps are illusory because the State lacks the authority to waive a victim’s restitution right and the trial court lacks the authority to enforce a restitution cap. Restitution caps also mislead defendants in making knowing and voluntary plea agreements. “Due process is satisfied when a court gives the defendant notice that it will award restitution provenbya preponderance of evidence in a hearing in which the defendant has the right to be present, be represented by counsel, and challenge any request for restitution. State v. Fancher, 169 Ariz. 266, 268 (App. 1991); see Ariz. R. Crim. P. 17.2(a)(2). The defendant also has the right to seek post-conviction review of that order. Hoffman v. Chandler ex rel. Cty. of Pima, 231 Ariz. 362, 366 ¶ 19 (2013).” Id. at 4-5, ¶ 12. (2) This Will Apply Prospectively. The new rule of criminal procedure announced here does not meet either the Teague or Allen standards for retroactive application and will not apply retroactively to cases that have become final. (3) Victims’ Attorneys Should Presumptively Be Before the Bar. Statute provides that a victim may hire an attorney to protect her rights, and that attorney should be included on pleadings and be included in all bench conferences and in chambers meetings and sessions with the trial court that directly involve a victim’s right enumerated in the Arizona Constitution. While trial court has the inherent authority to control the courtroom and trial proceedings, victims’ counsel should be presumptively allowed to sit before the bar when a victim’s constitutional or statutory rights are directly at issue. Hearings involving rights that would raise this presumption include, for example, those listed in article 2, section 2.1 of the Arizona Constitution and found at A.R.S. §§ 13-810, -4421, -4422, -4423, -4426, -4427, -4435, -4437, -4440, and -4441. Presumption can be overcome, though, considering physical distancing during a pandemic or arrangements affecting the conduct of a fair hearing. Conclusion: Court vacated the cap on restitution available to E.H. and remanded with directions to the trial court to allow the defendants the opportunity to move to withdraw from their plea agreements upon a showing that the inclusion of the cap on restitution was material and relevant to their decision to plead guilty. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 20

State v. Shane Alan Raffaele, No. 1 CA-CR 19-0026 (August 6, 2020, Arizona Court of Appeals, Division One) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CR19-0226%20-%20Raffaele.pdf Factual background: Raffaele was pulled over after a lane change violation. He first caught the officer’s attention for appearing to be rigid and not acknowledging the officer’s presence. Once stopped, the officer asked him to get out of the car with his license, explained the reason for the stop, and informed Raffaele that he would be issuing a warning. The officer noted that Raffaele was polite, but had facial tremors and appeared nervous. Raffaele told the officer he was returning from a day trip to California. The car had California plates and Raffaele confirmed it was a rental, he also permitted the officer to enter the car to get rental documents from the console. In doing so, the officer smelled marijuana—he couldn’t tell if it was burnt or unburnt. After giving Raffaele the warning, the officer continued to speak with him, eventually asking when the last time was that he smoked marijuana. Raffaele presented his AMMA card and stated he smoked in the car 2 days prior. After being told the car was going to be searched Raffaele admitted to transporting seven pounds of marijuana; the subsequent search found ten pounds. Raffaele was ultimately tried in absentia and convicted of transporting two or more pounds of marijuana for sale. Issues: 1. Whether the court of appeals had jurisdiction after Raffaele absconded? 2. Whether the prolonged traffic stop was supported by reasonable suspicion? 3. Whether he was deprived 6th amendment right to counsel? 4. Whether it was an error to impose a $2 criminal penalty assessment? Holdings: 1. Yes, it had jurisdiction. Though generally speaking a defendant waives their right to appeal if their absence prevents sentencing from taking place within 90 days from conviction, the court must find the absence was knowing, intelligent, and voluntary before waiver of his constitutional right to appeal could occur. The state bore the burden of proving the waiver was KIV. But the state failed to raise the issue and the court made no such findings; the court of appeals declined to do so on appeal. 2. Yes, the stop was supported by reasonable suspicion. Once the traffic stop was completed the officer continued the nonconsensual encounter. Presentation of the AMMA card might have dispelled probable cause based on odor alone, but the officer was still able to consider the totality of the circumstances. In this case, Raffaele’s facial tremors and nervousness over receiving a warning, his statement that he had luggage for a day trip, his use of a rental car (which the officer asserted is common among drug traffickers to avoid forfeiture of their own vehicle), and the fact that smoking in a car might not be AMMA compliant, all established reasonable suspicion that Raffaele was engaged in criminal behavior not protected by the AMMA. a. Though the court noted that smoking marijuana in a private vehicle located in a public place is not AMMA protected, there were no facts mentioned to suggest he smoked in a public place as opposed to a private garage.

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3. No, he was not deprived of counsel. Raffaele requested a continuance to hire new counsel two weeks prior to trial in 2017. His case began in August 2013, in August 2014 he failed to appear at court and was not located until April 2017. The court found that had he wished to hire counsel, he could have done so in the preceding 4 years instead of the last two weeks before trial. Further, a continuance to permit change of counsel would have caused an inconvenience for the court because an officer was planning to move out of town the day after he testified. 4. Yes, it was an error to impose the $2 penalty. The statue enacting the $2 penalty became effective on January 1, 2015. Raffaele committed his offense in August 2013. Consequently, imposing a penalty that did not exist at the time the offense was committed was a violation of the prohibition on ex post facto laws.

State v. Drake Jermell Clark, No. 2 CA-CR 2019-0048 (August 7, 2020, Arizona Court of Appeals, Division Two) https://www.appeals2.az.gov/decisions/CR20190048Opinion.pdf So don’t you hate it when you start reading a case and you think it’s going to be about DUI and you just think you probably won’t understand it, BUT THEN, it turns into a case about an appellate issue that you think is a stupid issue anyway because wasn’t that always the law, AND THEN it turns back into a DUI case and the court just seems to split hairs and do away with any possible affirmative defense that was ever in the medical mj statute? And then finally, you’re just not really sure why it’s an opinion because you don’t know either area of law very well. Don’t you hate that? Holdings: ¶19 [W]here a defendant has not expressly argued fundamental and prejudicial error due to insufficient evidence, waiver under Moreno-Medrano will not apply so as to foreclose fundamental error review. Stated differently, a claim on appeal that the defendant has been convicted based on insufficient evidence . . . is sufficient to preserve fundamental error review. To the extent we have in the past decided otherwise based on Moreno-Medrano, we disapprove of and depart from that reasoning. ¶24 The affirmative defense in 36-2802(D) is overcome when the state proves that a metabolite is present in an amount sufficient to cause impairment, whether or not it actually caused impairment. The undisputed facts are that defendant Clark was driving, with a minor under the age of 15 in his car, that he was in possession of a current medical marijuana card, and that he had some amount of marijuana metabolite in his system. He was stopped for having a headlight out. The arresting officer also testified to the ubiquitous bloodshot and watery eyes, slurred speech, and slow demeanor. There was also poor performance on field sobriety tests but D had an injured leg that likely influenced his performance. Defendant Clark was charge with four counts of aggravated DUI: 1. Driving with a suspended license while impaired by marijuana to the slightest degree, 2. Driving with a suspended license with a drug or metabolite in his system,

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3. Driving with a minor while impaired to the slightest degree, and 4. Driving with a minor with a drug or metabolite in his system. The state expert testified that D had 3.6 nanograms per mil of THC in his blood at the time he was tested, that the amount of THC doesn’t necessarily corelate to level of impairment, and “he had seen” documented cases of only one nanogram per mil causing impairment. At the close of the state’s case, D moved for a directed verdict on counts 1 and 3 arguing that the state failed to show that he was impaired. The defense expert testified that the 3.6 nanograms figure was not valid or reliable and that regardless, he could not say whether someone was impaired or not based on having 3.6 nanograms of THC in their system. The court instructed the jury on the affirmative defense in 36-2802(D) that if D showed by a preponderance that the amount of marijuana in his system was insufficient to cause impairment, they must acquit on counts 2 and 4. He was acquitted on counts 1 and 3 (impaired to the slightest degree offenses) and convicted on 2 and 4 (metabolite offenses). D argues on appeal that the acquittal on counts 1 and 3 (the state failed to prove he was impaired) necessarily means that he proved his affirmative defense (that the amount of THC in his system did not cause impairment) and that therefore the evidence was insufficient to convict on counts 2 and 4. The lack of a Rule 20 motion on counts 2 and 4 means that D waived all but fundamental error and the state argues that he has waived even fundamental error under State v Moreno-Medrano, 218 Ariz. 349 (App. 2008), because D only argues on appeal that the evidence was insufficient and does not expressly argue that the error was fundamental or prejudicial. ¶19 [W]here a defendant has not expressly argued fundamental and prejudicial error due to insufficient evidence, waiver under Moreno-Medrano will not apply so as to foreclose fundamental error review. Stated differently, a claim on appeal that the defendant has been convicted based on insufficient evidence . . . is sufficient to preserve fundamental error review. To the extent we have in the past decided otherwise based on Moreno-Medrano, we disapprove of and depart from that reasoning. ¶24 The affirmative defense in- 36 2802(D) is overcome when the state proves that a metabolite is present in an amount sufficient to cause impairment, whether or not it actually caused impairment when D was driving. Therefore the testimony of the state’s expert provided sufficient evidence to uphold the verdict. And in any event, Arizona doesn’t have a problem with inconsistent verdicts.

State v. Demitres Robertson, No. CR-19-0175-PR (August 12, 2020, Supreme Court of Arizona) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CR190175PR.pdf Facts: Robertson was charged with one count of first-degree murder and two counts of intentional child abuse for acts occurring in November 2001. Pursuant to a plea agreement, she pled guilty to reduced charges of manslaughter and reckless child abuse. The plea stipulated a sentencing range of eight to fifteen years’ imprisonment for the for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 23 manslaughter conviction and a consecutive term of lifetime probation for the child abuse conviction. Under the plea agreement, if she violated any written conditions of probation, her probation could be terminated, and she could be sentenced to any term stated in the plea agreement without limitation. The trial court sentenced Robertson to ten years’ imprisonment with a consecutive term of lifetime probation.

At her third probation violation hearing (after she violated probation while on IPS), Robertson contested the petition and argued for the first time that her convictions for manslaughter and child abuse comprised a single criminal act against a single victim. Thus, the stipulated consecutive sentences in her plea resulted in illegal double punishment in violation of Ariz. Rev. Stat. § 13-116 (“[a]n act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent.”).

The trial court denied her oral motion to dismiss the petition, revoked her probation, and ordered that she be imprisoned for the presumptive term of 3.5 years.

The court of appeals declined to address the merits of the sole issue presented on appeal: whether Ariz. Rev. Stat. § 13-116 barred imposition of a consecutive prison sentence on the offense for which Robertson was serving probation. Court instead found she was precluded from challenging her sentence on appeal because she had invited any potential error by stipulating to consecutive sentences in her plea agreement.

Holding(s): An appellate court may not apply the invited error doctrine to preclude review of an illegal, stipulated sentence in a plea agreement. Rationale: At the outset, the court of appeals resolved this appeal on an issue not raised, briefed, or argued by either party or ruled on by the trial court. While the court may choose to address issues that the parties fail to address in the briefing, the court should be cautious when deciding cases with no research assistance or analytical input from the parties. A defendant’s guilty plea does not waive all challenges to a subsequent sentence imposed after a probation violation. A pleading defendant who is sentenced to prison following a contested probation violation hearing does not receive a sentence pursuant to the plea agreement, but rather because of the probation violation. State v. Regenold, 226 Ariz. 378, 379 (2011). The Court explicitly rejects the “favorability doctrine” espoused by the court of appeals (that Robertson implicitly waived her appellate rights due to a particularly favorable stipulated sentence pursuant to a plea agreement). Robertson, at 5. Similarly, the court of appeals misapplied the invited error doctrine. The Court has previously cautioned against applying the doctrine unless the party asserting the error is responsible for introducing the error, as its application precludes relief even when the error is fundamental and prejudicial. Facts must demonstrate the party urging the error on appeal initiated, or at least actively defended the error rather than merely acquiescing to it. Because a stipulated plea agreement is a compromise between the state and the defendant, where both parties are involved in creating and agreeing to the terms, it must be clear from the record that the defendant not only agreed to the error but either initiated it or actively defended it. Given the unequal bargaining power between the state and a defendant, the latter is usually in no position to dictate that specific terms be included in plea agreements.

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Further, a court cannot apply the invited error doctrine to prevent review of a potentially illegal sentence stemming from a stipulated plea agreement. Ariz. Rev. Stat. § 13-4037(A) provides that trial courts lack authority to impose an illegal sentence and expressly requires the appellate courts to correct an illegal sentence. CONCLUSION: Court vacated the holding of the court of appeals’ opinion and remanded to the court to consider the merits of Robertson’s appeal concerning the legality of her sentence under Ariz. Rev. Stat. § 13-116.

State v. Bobby Ray Carter Jr., No. CR-18-0508-PR (August 13, 2020, Arizona Supreme Court) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CR180508PR.pdf Facts: Carter stole both an SUV and a tractor in January 2015. He was convicted of theft of property with a value of $4,000 or more but less than $25,000 (A.R.S. § 13-1802(A)(1), (G)), vehicle theft (A.R.S. § 13-1814(A)(1)), and robbery (A.R.S. § 13-1902(A)) for stealing the SUV. For the tractor, Carter was convicted of theft of property with a value of $25,000 or more (§ 13-1802(A)(1), (G)), and vehicle theft (§ 13-1814(A)(1)). The court of appeals reversed in part, holding that Carter’s convictions for theft and vehicle theft for both the SUV and the tractor constituted multiple punishments for the same offense. The court of appeals also concluded, however, that while Carter’s convictions for theft and robbery involving the SUV were separate offenses that could be punished separately. The court vacated the convictions carrying lesser penalties: the theft conviction involving the SUV and the vehicle theft conviction involving the tractor. Rational: (1) Theft is a Lesser-Included Offense of Vehicle Theft Vehicle theft cannot be committed without also committing each of the elements required to prove theft. Under Blockburger’s same-elements test, they are the same offense for double jeopardy purposes. Vehicle theft requires two elements in addition to those necessary for theft—it requires the property be a means of transportation and that the defendant intend to permanently deprive the victim of that property. Because it has the greater number of elements, vehicle theft is the greater offense and theft is the lesser-included offense. Consequently, the Court overrules State v. Garcia, 235 Ariz. 627, 630 (App. 2014) (finding that vehicle theft is the lesser-included offense of theft). (2) Theft is a Lesser-Included Offense of Robbery Theft is a lesser-included offense of robbery, because robbery requires all elements of theft and additionally requires several additional elements beyond theft. This is “well-settled” in Arizona. (3) Vehicle Theft is Not a Lesser-Included Offense of Robbery Vehicle theft and robbery each require proof of an element that the other does not. Robbery does not require an intent to permanently deprive the victim of the property nor must the property be a means of transportation. And vehicle theft does not require the use of force or the threat of force nor that the taking be from a person ora person’s immediate presence. Thus, vehicle theft is not a lesser-included offense of robbery.

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(4) Legislative Intent The court must then consider whether a “clear indication of contrary legislative intent” rebuts the presumption afforded by Blockburger’s same-elements test. The legislative history of theft, vehicle theft, and robbery described below is consistent with the presumption that the legislature did not intend to impose multiple punishments for the same offenses. The legislative history of vehicle theft and theft supports the conclusion that theft is a lesser-included offense of vehicle theft. In 1998, the Arizona Legislature enacted a separate vehicle theft offense. House Bill 2185 separated vehicle theft “from the tiered penalty system associated with ordinary theft.” Ariz. State House Summary for H.B. 2185, 43rd Leg., 2d Reg. Sess. (Mar. 10, 1998). Based on the legislative history, the state legislature did not intend for a defendant to be punished for both theft and vehicle theft for the same criminal transaction. The vehicle theft statute now has a standardized penalty; it is always a class three felony, instead of a penalty dependent on the value of the property stolen, as is true of the theft statute, indicating a desire for defendants to be punished under the vehicle theft statute. (5) An Offense with a Greater Penalty Can be a Lesser-Included Offense of One with a Lesser Penalty Whether the penalty is less or the same, an offense is a lesser included offense if all the elements thereof are contained within the elements necessary to prove the offense charged. What matters is not the penalty, but the common elements of the offense. Carter’s convictions for theft and vehicle theft involving both the SUV and tractor, as separately charged, violate the Double Jeopardy Clause. Similarly, Carter’s conviction for theft, in count five, and for robbery, in count seven, involving the SUV, constitute impermissible double punishment for the same offense. The court of appeals’ remedy of vacating the less severe convictions and sentences for the offenses that implicate the Double Jeopardy Clause was appropriate because the State proved the offense bearing the more severe penalty, and it would be “paradoxical” to “allow the defendant to escape the full consequences thereof.” Conclusion: The court affirmed in part and vacated in part the convictions and sentences of the trial court and affirm the opinion of the court of appeals.

State v. Max Fontes, No. 2 CA-SA 2020-0031 (August 14, 2020, Arizona Court of Appeals, Division Two) https://www.appeals2.az.gov/decisions/SA20200031Opinion.pdf

This is kind of a kick in the pants. As a non-vehicular attorney, I don’t understand the difference between the relevance or foreseeability of a victim improperly failing to yield (which is apparently relevant and admissible) and a victim driving impaired and failing to restrain his child (which the court found is not relevant or admissible and is foreseeable “as a matter of law”). As just a regular old driver out there on the streets, it seems far more foreseeable to me that another driver will make an unsafe left turn than that they will drive impaired and without seat belting themselves or their infant child. Vehicular peeps and other smarties, what am I missing here? D is charged with vehicular manslaughter, aggravated assault, and criminal damage. He was driving between 75 and 95 mph in a 45 mph zone when he struck a car that was turning left. Both V’s in the other car, the driver and his for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 26

7 month old child, were unrestrained and ejected. The baby was killed and the driver was seriously injured. The V driver had marijuana pipe in his car and THC metabolite in his system. He pled guilty to DUI and endangerment. Over state’s objection, trial court found that D was not precluded from presenting a superseding-cause defense or from presenting evidence of V’s lack of restraints, possible marijuana impairment, and the presence of a marijuana pipe in V’s vehicle. The state agreed that evidence of V’s failure to yield while making the turn was relevant and admissible, but argued it was not a superseding cause. This special action followed and D2 granted relief to the state and held that “a superseding-cause instruction is inappropriate as a matter of law.” D2 also reversed the denial of state’s motion to preclude evidence of the DUI, possible impairment, and lack of seatbelts or a child’s car-seat. Relying on State v. Slover, 220 Ariz. 239, ¶ 11 (App. 2009), the court found that D’s “speeding created the foreseeable risk that a fatal accident could occur. That [V]’s conduct increased that risk does not entitle D to a superseding-cause instruction.” My further editorial comment: It’s an interesting read. The court seems to conflate relevance for any purpose with foreseeability and the appropriateness of a superseding cause instruction. Right at the end of ¶13, the court seems to leave open the possibility that the MJ and the lack of restraints could be admissible for some other purpose- maybe the same relevance as the failure to yield? It’s a mystery to me.

State v. Hon. Michael W. Kemp (Apolinar Altamirano) No. CR-19-0274-PR (August 17, 2020, Arizona Supreme Court) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CR190274PR.pdf Facts: The State indicted Altamirano for first degree murder and filed a Notice of Intent to Seek the Death Penalty. The trial court ordered Altamirano to undergo an IQ prescreening evaluation under Ariz. Rev. Stat. §13-753(B). Although Altamirano initially objected, a few months prior to trial he requested the evaluation, and the trial court granted the request. Following the evaluation, the trial court held an evidentiary hearing to determine if he was intellectually disabled. The trial court found that Altamirano met his burden of proving intellectual disability and dismissed the State’s Notice of Intent to Seek the Death Penalty. The State filed a special action with the court of appeals and alleged the trial court erred by ignoring the statutory definition of intellectual disability, which requires an overall assessment of Altamirano’s ability to meet society’s expectations of him. Specifically, the parties disputed whether the trial court property applied the statutory definition of “adaptive behavior” considering recent Supreme Court decisions in Moore I and Moore II. The court of appeals accepted jurisdiction but denied relief. The Court accepted review to determine whether Arizona’s statutory framework for determining intellectual disability complies with recent Supreme Court decisions. Holding: Recent Supreme Court decisions (Moore I and Moore II) did not eliminate Ariz. Rev. Stat. § 13-753(K)(1)’s requirements that the trial court: (1) conduct an overall assessment to determine if the defendant has a deficit in any life-skill category; and (2) if a deficit exists, to determine whether it affects the defendant’s ability to “meet the standards of personal independence and social responsibility expected of defendant’s age and cultural group.” for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 27

RATIONALE:

(1) Intellectual Disability Developments Executing the intellectually disabled would not “advance the deterrent or the retributive purpose of the death penalty” and thus imposing the death penalty on intellectually disabled defendants was an excessive punishment in violation of the Eighth Amendment. The Supreme Court left it up to the States to develop methods to enforce this constitutional restriction and determine an individual’s intellectual disability. Subsequently, Arizona enacted Ariz. Rev. Stat. § 13-703.02(K). Following Atkins, the Supreme Court also noted that States do not have unfettered discretion to determine the full scope of this constitutional protection and that while the legal determination of an intellectual disability is different from a medical diagnosis, the determination must be informed by the medical community’s diagnostic frameworks. Arizona’s statute’s failure to align its’ definition of adaptive behavior with the prevailing medical definition does not violate the Eighth Amendment, because the required “overall assessment” permits consideration of deficits in life- skills categories. Recently, Supreme Court decided Moore I, which disapproved the Texas appellate courts’ reliance on factors to determine intellectual disability that were not informed by the opinions of the medical community or experts. The Supreme Court noted that the appellate courts’ departure from the medical community created an unacceptable risk that persons with an intellectual disability would be executed. In Moore II, the Supreme Court noted once again that a court’s intellectual disability determination must be informed by the medical community’s diagnostic framework. (2) Ariz. Rev. Stat. § 13-753(K) To prove intellectual disability in Arizona, a defendant must establish (1) significantly subaverage intellectual functioning; (2) significant impairment in adaptive behavior; and (3) the onset of these conditions beforethe defendant turned eighteen. Courts must determine the disability using current community, nationally and culturally accepted physical, developmental, psychological, and intelligence testing procedures. Because Arizona’s framework relies on principles from the medical community, Moore I and Moore II do not call this analysis into question. To the extent that Arizona’s scheme requiring an overall assessment departs from the medical community consensus, such deviation does not render the scheme unconstitutional. To access adaptive behavior, the court should first conduct an overall assessment by holistically considering the strengths and weaknesses in each life-skills category (conceptual, social, and practical) to see if there is a deficit. A court cannot offset weaknesses in one category with unrelated strengths in another category. If the court does not identify deficits, the inquiry ends. If there is a deficit, the court should determine whether that deficit, considering the individual’s overall assessment, actually affects the defendant’s ability to function with the “personal independence and social responsibility expected” of their age and cultural group. Conclusion: Arizona’s statutory framework for adjudicating intellectual disability complies with the constitutional requirements announced in Moore I and Moore II. However, because the trial court did not conduct an overall assessment of Altamirano’s ability to meet society’s expectations of him as required by § 13-753(K)(1), the Court vacated the court of appeals’ decision order, reversed the trial court, and remanded for a new intellectual disability determination using the standard set forth in this opinion. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 28

State v. David Furlong, No. 1 CA-CR 18-0809 (August 20, 2020, Arizona Court of Appeals, Division One) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CR%2018-0809%20-%20Furlong%20FINAL.pdf In 1988 at age 17, Furlong pled guilty to two class 3, second degree dangerous crimes against children. He was placed on lifetime dual adult-juvenile probation and required to register as a sex offender. In 2013, his civil rights were restored; in 2014 he was discharged from lifetime probation; and in 2015 he was released from the requirement to register as a sex offender. In 2018, Furlong moved to set aside his judgment of guilt pursuant to A.R.S. § 13-921(B)(1). That request was denied after the superior court found that under A.R.S. § 13-905(K), his offenses could never be set aside due to the age of the victim—essentially deciding that every applicant for a set aside must first meet the requirements of § 13-905, and, if those requirements are met, then individuals on dual adult-juvenile probation must also meet the requirements of § 13-921. [to avoid text walls, I am not including the relevant statutory provisions this time—they are available in the opinion and everywhere you find statutes] Furlong appealed, arguing that because 13-921 sets forth the specific circumstances to set aside guilt for a defendant under 18 placed on dual adult juvenile probation he was not subject to the requirements of 13-905, which sets forth the general requirements for any adult convict to have judgement set aside. The court of appeals agreed holding, after a statutory construction analysis, that the two statutes operate independent of each other—with § 13-905 applying to adult offenders and § 13-921 applying to juvenile offenders placed on dual adult-juvenile probation. As a result, Furlong was eligible to have his judgment of guilt set aside or expunged under § 13-921.

State v. WSV Aldo Torres Moreno, No. 1 CA-CR 19-0442 (August 27 2020, Arizona Court of Appeals, Division One) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/1%20CA-CR%2019-0442%20-%20Torres% 20Moreno.pdf Moreno had been charged with multiple felonies and was released for those charges on a $50 bond. While on release he was arrested on a separate misdemeanor warrant. At the police station for booking he pulled away from the officer trying to fingerprint him and began running around the room. He kicked and fought with officers until he was subdued. Based on this, a new felony case was filed charging him with Aggravated Assault and Resisting Arrest. He was convicted of Resisting Arrest after a jury trial and the state also proved the enhancement that he was on felony release at the time of the offense, adding two years to his prison sentence. On appeal, Moreno argued that because he had been taken into custody on the misdemeanor warrant, he was no longer on felony release because he was no longer released into free society and that consequently the sentence enhancement was inappropriately applied. The court of appeals disagreed with this position and held that nothing about a subsequent arrest on an unrelated charge modifies a defendants “on release” status absent further order from the trial court. So despite the fact that he was actually in custody, legally he was still on release with regard to the earlier felony charges. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 29

State v. Christopher Arevalo, No. CR-19-0156-PR (September 1, 2020, Arizona Supreme Court) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2020/CR190156PR%20AMENDED.pdf ** I recommend reading the concurrence by Justice Bolick. It argues that the Court should eliminate the presumption of constitutionality afforded to statutes Facts: Arevalo faced two distinct cases in which he was charged with four total counts of Threatening and Intimidating in violation of Ariz. Rev. Stat. § 13-1202(B)(2). The first two charges arose out of a shoplifting in which he gestured at two employees, mimicked holding a firearm, and made gunfire noises. He did not mention any gang affiliation during the encounter. Both employees told police that they suspected he was a gang member. Arevalo later admitted to being a gang member in LA and that he had begun associating with a local Arizona gang.The second two charges involved a family dispute that resulted in police responding. Arevalo allegedly threatened to bash an officer’s head in and threatened several others with a tire iron. At no point did the State allege a nexus between Arevalo’s charged conduct and his gang membership. Arevalo moved to dismiss all threatening or intimidating charges or alternatively reduce the charges to class 1 misdemeanors, arguing that the statute was unconstitutional. The trial court dismissed the charges, holding that Ariz. Rev. Stat. § 13-1202(B)(2) is unconstitutional because it violates due process by punishing a defendant solely for gang association. The State appealed, and the court of appeals rejected Arevalo’s arguments under substantive due process, equal protection, and First Amendment free speech rights, remanding the case. HOLDING: Ariz. Rev. Stat. § 13-1202(B)(2), which enhances the sentence for threatening and intimidating if the defendant is a criminal street gang member, is unconstitutional because it increases a criminal sentence based solely upon gang status in violation of substantive due process. RATIONALE: At the outset, the Court agrees that the statute violates substantive due process. Subsequently, the Court does not address Arevalo’s equal protection and First Amendment claims that he did not urge in this Court. Court reviews the constitutionality of a statute de novo. An act of the legislature is presumed constitutional, and where there is a reasonable, even though debatable, basis for enactment of the statute, the act will be upheld unless it is constitutional. Challenging party bears the burden of proving the law’s unconstitutionality. While the presumption of constitutionality may require the Court to interpret a statute to give it constitutional construction, the Court will not rewrite and act to save it. A party raising a facial challenge must establish that under no set of circumstances would the statute be valid. Supreme Court had previously determined that the substantive due process standard for permissibly criminalizing associational status requires a “substantial nexus” between the status and the underlying criminal charge. The relationship between associational membership and the underlying criminal conduct “must be sufficiently substantial to satisfy the concept of personal guilt to withstand attack under the Due Process Clause.” The Court goes through an explanation of the different levels of scrutiny before concluding that even under a rational basis review, the statute is unconstitutional. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 30

First, the Court addresses the court of appeals’ analysis, noting that it failed to meaningfully address the requisite due process inquiry. On appeal, the State argued that the “increased risk of violence” when a gang member threatens, is the required nexus necessary to penalize gang members more harshly. The Court disagrees, stating that although a gang member’s proclamation of membership, when it accompanies threatening, might provide a sufficient nexus to justify enhanced punishment, a theoretical connection between the two fails to satisfy due process. A non-gang member’s threat is indistinguishable from a gang member’s threat if the threat is not bolstered by gang membership. By its terms, the statute permits sentencing enhancement absent any nexus between gang membership and the crime. The absence of a nexus requirement between gang status and the crime renders the statute facially invalid under Salerno because no application comports with constitutional standards. The Court cannot and will not rewrite the statute to save it. Arizona’s expansive definition of a “criminal street gang” reinforces the Court’s holding. The definition’s breadth invites a sweeping application and presents a substantial risk that the (B)(2) enhancement will apply without a sufficient nexus between membership and the underlying crime. Additionally, other state courts have similarly concluded that statutes that do not require a sufficient nexus between the offense and the membership are unconstitutional. Court finally disavows Meeds to the extent the court mischaracterized the statute’s requirements. Conclusion: Court vacates the court of appeals’ decision, affirms the trial court’s ruling, and remands to the trial court for further proceedings. Concurrence: (Bolick, J. joined by Pelander, J. (retired)): Justice Bolick joins the Court’s “well-reasoned” opinion but writes separately because he would disregard the presumption of statutory constitutionality. “It is essential to our system of justice, and to its endurance, that every person enter the courtroom on a level playing field. Sometimes our rules of procedure provide a momentary advantage to one side or the other, but ideally the law is blind to the identity, power, and resources of the litigants. All of that is represented by the most ubiquitous symbol of the American judicial system, the scales of justice. They are, by their nature and necessity, evenly balanced. But when a litigant, whether in a criminal or civil context, argues that a law that diminishes liberty is unconstitutional, the scales are tipped by the presumption of constitutionality in favor of the government. Although this presumption is deeply rooted in our jurisprudence, it is antithetical to the most fundamental of ideals: that our constitutions are intended primarily not to shelter government power, but to protect individual liberty.” ¶ 30. The concurrence hails back to Marbury v. Madison and to the Federalist Papers and argues fervently against the infringement of individual rights. “But interpreting statutes to avoid constitutional problems when an equally plausible interpretation presents itself is different, by order of magnitude, from a presumption that a statute is constitutional. When a court defers to legislative judgments about the constitutionality of statutes, it abdicates its most essential constitutional duty... What we mean by de novo review, when coupled with a presumption of constitutionality, is that we disregard the reasoned legal judgment of the courts below, but we credit the legislature’s self-interested determination of its own constitutional authority. That is not true de novo review, yet true de novo review is exactly what our constitutional duty requires.” ¶ 42. for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 31

State v. Adrian Gonzales Cruz, No. 1 CA-CR 18-0543 (September 3, 2020, Arizona Court of Appeals, Division One) https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2020/CR%2018-0543%20State%20v.%20Cruz%20OP.pdf Brief statement of facts: In 2009 Cruz was on trial for sexual misconduct and kidnapping charges. In the midst of trial he escaped from custody. The trial continued in his absence and he was convicted on multiple charges, but sentencing could not proceed in his absence. Years later he was found, arrested, and tried for escape. On the theory that he was not the same person who escaped from custody in the Sex Assault Case, he was acquitted. Cruz argued that his acquittal collaterally estopped the state from proving his identity at sentencing for the Sex Assault Case. The trial court disagreed, found that in the Sex Assault Case his identity was proven BRD for sentencing, and sentenced him to prison. Issue: Cruz appealed, arguing that double jeopardy and collateral estoppel barred his sentencing in the Sex Assault Case. Holdings: The court of appeals dismissed the notion that double jeopardy was at play because Cruz did not face multiple prosecutions or punishments for the same offense. After analysis, the court also disagreed that collateral estoppel applied. Collateral estoppel “means that ‘when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’” (interestingly, it notes that collateral estoppel is an essential part of the protection against double jeopardy.) The court observed that collateral estoppel is disfavored in criminal cases and sparingly used. Collateral estoppel applies when the relitigated issue is “precisely the same” as the previously litigated issue, there was a final decision on that issue, and there is mutuality of parties. The defendant has the burden of proving he was acquitted because the jury resolved the very same issue in his favor that he is trying to prevent relitigating. In the Escape Case, the issue was the identity of the person who escaped in the Sex Assault Case; but in the Sex Assault Case, the issue was determining at sentencing the identity of the person who was arrested and charged in that case. The court held that those did not constitute identical issues. It further noted that it saw “no definitive indication in the record” that the jury verdict indicated more than the State failed to meet its burden on every element of escape BRD—which could have meant that identity was proven but another element was not. But even if they had specifically found that the State failed to prove identity, it would only mean that he was found not to be the person who escaped—which wouldn’t have determined whether he was also the person arrested and charged. [Theoretically, perhaps, Cruz could have switched booking numbers and cell assignments with another inmate. That other inmate escaped, making it appear that Cruz escaped, resulting in a warrant for Cruz. All the while, Cruz had never left custody, serving out the other inmates short misdemeanor sentence. Cruz gets released, but he’s later picked up on that warrant. Because he literally did not escape, he is found NG on the Escape Case—but the state is still able to prove that the real Cruz is the same person who was originally arrested and charged in the Sex Assault Case. Fantastical as it may be, that’s one of the few scenarios I can concoct to ground the holding in an understandable reality instead of an overly technical legal conclusion.]

for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 32

TRIAL RESULTS

Jury and Bench Trial Results

July — September 2020

Closed Attorney Judge Charge No. of Result Date Co-Counsel counts Investigator Paralegal Mitigation

JUSTICE COURTS (Public Defender) 9/3/2020 H. BERKO WILLIAMS JC2019-121033-001 BENCH TRIAL –GUILTY AS FAIL TO COMPLY-COURT ORDER M1 1 CHARGED

TRIAL GROUP A (Public Defender) 9/4/2020 K. NICKEL MROZ CR2019-134105-001 BENCH TRIAL – GUILTY BUT T. WRAY AGG ASLT-DEADLY WPN/DANG INST, F3 4 INSANE A. OLSON C. COLE

TRIAL GROUP B (Public Defender) 8/27/2020 R. KADER FISH CR2019-125344-001 BENCH TRIAL – NOT GUILTY C. ORTEGA RESIST ARREST-PHYSICAL FORCE, F6 1 J. ROMANI T. ACORDA

TRIAL GROUP C (Public Defender) 8/28/2020 Z. EVANS PINEDA CR2018-139646-002 JURY TRIAL—GUILTY AS POSS WPN BY PROHIB PERSON, F4 1 CHARGED CARRY DEADLY WPN-FAIL TO ADMIT, M1 1

DEPENDENCY TRIAL RESULTS (Legal Advocate)

Closed: Team: Judge: JD#: Dep or Sev Trial: Results:

7/2/2020 C.HERZHAFT LANG JD30216 DEP TRIAL DEP FOUND L. KLASS V. WILLIAMS

8/7/2020 L. RICHARDSON GORDON JD39423 DEP TRIAL DEP FOUND R. JENKINS

8/10/2020 M. VERA CUNANAN JD39450 DEP TRIAL DEP FOUND A. ELWOOD

8/12/2020 L. RICHARDSON GORDON JD35871 SEV TRIAL SEV GRANTED R. JENKINS

8/14/2020 C.HERZHAFT LANG JD37733 DEP DEP FOUND V. WILLLIAMS

9/2/2020 L. RICHARDSON GORDON JD32012 DEP DEP FOUNDS R. JENKINS

9/4/2020 C.HERZHAFT LANG JD39138 DEP TRIAL DEP FOUND V. WILLLIAMS

9/21/20 M. VERA CUNANAN JD37374 SEV SEV GRANTED A. ELWOOD for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 33 for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 34 for THE DEFENSE October 2020 Volume 30, Issue 3, Pg. 35

A publication of the Maricopa County Public Defender’s Office Delivering America’s Promise of Justice for All

Editors Stephanie Conlon Sierra Taylor

Assistant Editor

Stephanie Cravath

Office 620 West Jackson St., Suite 4015 Phoenix, AZ 85003 p: 602.506.7711 f: 602.372.8902 [email protected]

for THE DEFENSE is the training newsletter published by the Maricopa County Public Defender’s Office, Gary Kula, Director