News Archive
Amicus and Strike Force Activity
Jun 06, 2005
By Christopher Dupont
In order to support our members AACJ works diligently to ensure that our voice is heard as an organization on important issues that affect all of us as attorneys, our support staffs and our clients. With the goals of protecting our members and promoting ordered liberty, the volunteer attorneys on this committee have come forward to represent attorneys cited or threatened with contempt; our attorneys have represented attorney staff in order to protect confidential communications and work product; we have entered amicus briefs in several cases at both the Court of Appeals and the Arizona Supreme Court; and we have worked with public defender organizations around the state, the Arizona Public Defender's Association, the National Association of Criminal Defense Lawyers and Arizona Capital Representation Project in order to present a united voice on the front lines in the fight for criminal justice.
This brief is to update everyone on recent projects:
Published Amicus Opinions
A quick Westlaw search shows that during the history of AACJ, there have been six published opinions in which AACJ participated as amicus; three of those were prior to 1994. There was also one reported decision in which our attorneys appeared pro bono on behalf of individual members. The three decisions as amicus are as follows:
State ex rel. Romley v. Hauser, 209 Ariz. 539, 105 P.3d 1158 (2005). The Arizona Supreme Court held that, "Under plain language of amended sentencing enhancement statute, prior felony conviction that fell outside other enhancement statute's definition of a "historical prior felony conviction" could nonetheless be used for sentence enhancement purpose." (Thank you Gregory Parzych, who submitted the brief on behalf of AACJ).
Derendal v. Griffith, 209 Ariz. 416, 104 P.3d 147 (2005). The Arizona Supreme Court held that, "the analysis of jury eligibility for trials of misdemeanor offenses in Arizona requires a two step process. First, Article 2, Section 23 requires that a court determine whether a statutory offense has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood. In making that decision, the court should consider whether substantially similar elements comprise the common law offense and the offense charged. If so, the inquiry concludes, and the defendant's right to a trial by jury is established.
If, however, the court finds no common law antecedent for which a jury trial was required, the court must analyze the seriousness of the offense under Article 2, Section 24. Because this provision is Arizona's analog to the Sixth Amendment, we apply a modified Blanton test. If the legislature has defined an offense as a misdemeanor punishable by no more than six months incarceration, we presume that the offense is petty, and no jury right attaches. A defendant may rebut this presumption, however, by demonstrating that the offense carries additional severe, direct, uniformly applied, statutory consequences that reflect the legislature's judgment that the offense is serious. If a defendant makes that showing, Article 2, Section 24 guarantees a right to trial by jury. (Stephen Paul Barnard submitted a brief on behalf of AACJ; Treasure van Druemel submitted a brief on behalf of City of Phoenix Public Defender; and Kathleen Cary submitted a brief on behalf of Maricopa County Public Defender).
AACJ members David Derickson, Gary Kula and Darrow Sol, and Greg Parzych among others are actively researching common law antecedents and aggressively litigating the right to jury trial for misdemeanor offenses.
State v. Brown, 209 Ariz. 200, 99 P.3d 15 (2004). The Arizona Supreme Court held that, "The State now concedes that this opinion cannot withstand analysis in light of Blakely. We agree. The "maximum sentence" for Apprendi analysis in this case is the five-year presumptive sentence in § 13-701(C)(1). Because a sentence in excess of five years could be imposed on McMullen only after a finding of one or more of the aggravating circumstances in § 13-702(C), the Sixth Amendment guarantee of jury trial extends to the finding of these facts and requires proof beyond a reasonable doubt. (John A. Stookey submitted a brief on behalf of AACJ; James J. Haas submitted an amicus on behalf of the Maricopa County Public Defenders).
The reported decision in which our attorneys appeared on behalf of individual members:
Bergeron ex rel. Perez v. O'Neil, 205 Ariz. 640, 74 P.3d 952 (App. 2003). Eleanor Miller, Ralph Ellinwood and Nicholas Hentoff appeared on behalf of individual members in both the trial court and at the Arizona Court of Appeals, Division 2, that held, "Judges' orders, requiring attorneys to explain their reasons for having filed notices of change of judges in various criminal actions, after attorneys had avowed that their notices were not being filed for any improper purpose, contradicted purpose of criminal procedure rule governing change of judge on request; perceived policy benefits of rule depended on mechanism by which litigants could remove judge without explaining basis for doing so."
Recent Amicus Submissions
In the Matter of James Joseph Hamm, Supreme Court No. SB-04-0079-M. AACJ submitted a brief in the case of James Hamm, whose admission to the bar is at issue. Mr. Hamm was convicted of two murders more than twenty five years ago, and the State Bar submitted an amicus brief to argue per se disqualification based upon the prior convictions. As a side note, the State bar is attempting a rule change that would disqualify any applicant for the bar who had any felony conviction. Without addressing the merits of Mr. Hamm's application, a team of lawyers on behalf of AACJ stressed the importance of rehabilitation in any consideration of past misdeeds and suggested a totality of circumstances test to determine eligibility for the bar. The Supreme Court accepted the AACJ Amicus request and granted a request to participate in oral argument. The date and time of oral argument shall be set by future order, and the membership will be updated as the matter progresses. (Participating Members: Marty Lieberman; Andy Silverman; Laura Winsky; Carla Ryan, Amy Nguyen; and Michael Kimerer, a Past President of The State Bar of Arizona.
Biggs v. Keppel, Supreme Court No. CV-04-0404-SA. AACJ submitted a brief to the Arizona Supreme Court on the issue whether a prosecuting attorney must submit to the grand jury evidence of the affirmative defense justification. The brief outlines the historical importance of the grand jury and the continuing need to present both sides of the facts to jurors, so that jurors may both accuse those in need and exonerate those deserving. The brief introduces a new argument based on ethical obligations of an attorney to present both favorable and unfavorable facts in any ex parte proceeding. (Submitted by Tom Crowe, attorney for the defense in the Crimmins special action).
Paterakis v. Hotham. AACJ submitted a brief detailing the importance of enforcing the Interstate Compact on Detainers.
Canion v. Cole, 208 Ariz. 133, 91 P.3d 355 (2004); Arizona Supreme Court No. CV-04-0243 PR. In this case, the Arizona Court of Appeals, Division 1 held that, "State's duty of disclosure of evidence favorable to defendant did not end with verdict in which he was found guilty of firstdegree felony murder, and after defendant, in post-conviction relief proceedings, showed good cause and made colorable allegations of newly discovered materials suggesting that evidence that should have been disclosed to him was not, prosecution was required to disclose clearly exculpatory evidence. U.S.C.A. Const.Amend. 14." The state appealed and AACJ submitted a brief to the Supreme Court. (Submitted by Ellen Rubin for AACJ).
LeBrun v. McClennen, Arizona Supreme Court No. CV-05-0121 PR. This joint amicus brief presented persuasive policy reasons related to the following principle of law: "To ensure a fair trial, a trial court must hold an evidentiary hearing to determine whether 'other act' evidence is admissible in a sexual misconduct case when the principal evidence is the testimony of the alleged victim." (Brief prepared by Dawn Sinclair and submitted jointly by Joseph St. Louis on behalf of AACJ, Robert S. Briney on behalf of Maricopa County Legal Defender, James J. Haas by Maricopa County Public Defender and Arizona Public Defender Association, and Susan Sherwin on behalf of Maricopa County Legal Advocate).
State v. Richards, 2 CA-CR 2001-0280 PR Cons. The amicus filed by Joe St. Louis details the need for the prosecutor to disclose evidence prior to trial and the ongoing need to disclose post-trial.
Recent and Ongoing Projects
Sojka v. McClennen, Maricopa County Superior Court. John Hannah represented a mitigation specialist when Judge McClennen summoned her and threatened to compel disclosure of confidential communications and work product. A team of lawyers from AACJ, NACDL and Arizona Capital Representation Project were on stand-by in the even of a contempt citation. At hearing, the court did not attempt to compel any such disclosure.
Contempt Citations. Out attorneys have represented attorneys in Cochise County, Mohave County, Pinal County, Maricopa County and Pima County. Of the numerous threats and actual citations for contempt, one member was found guilty on one of several cited counts; AACJ has an attorney preparing the appeal and an attorney preparing an amicus on the issues presented by the appeal.
AACJ is committed to protecting our members and standing up on issues that are important to our members and our clients. Member support, both in the form of membership dues and volunteer time on committees and at seminars makes us all stronger than we could ever be by ourselves. There are too many people to thank, so we thank you all. If there is an issue or problem you would like to address or if you would like to volunteer your services, contact Christopher Dupont 602-506- 5683(o) or 602-770-8942(c) or christopherdupont@yahoo.com.