TheAgitator.com
What the…..
Tuesday, November 3rd, 2009….so any attorneys want to explain to me what happened in this video? Is this as blatant, outrageous (and, I’d hope, illegal) as it looks? I mean, it is Maricopa County. But damn.
Summary for the attention deprived: As the defense attorney is talking to the judge, a detention officer walks up behind her, sifts through her files while she isn’t looking, then actually removes a document from her file and hands it off to another deputy.
(Thanks to commenter “Salvo” for the link.)
MORE: I have a post up about this at Hit & Run.
Someone should make a copy of this video. I’m pretty sure it’s not going to stay on YouTube for long.
http://www.heatcity.org/2009/10/detention-officer-tries-to-explain-why.html
click to read what happened afterwards… part 1 at least…
the defense attorney did a pretty good job keeping reasonably cool and asserting herself… I wonder how many times this has happened before?
I’m posting it on a bulletin board that I know will get lots of views.
Ha, leave it to the convict to know wtf’s up.
Apparently, the officer’s trial would depend on whether the attorney is willing to waive attorney client privilege as to the specific document. WTF? There is a pretty clear A/C privilege, and it requires a very strong showing, and judicial oversight, to overcome the privilege—reaching across the table is not sufficient.
I think the judge’s logic, from the above link provided by Ira, is extremely faulty. The judge admits that atty-clt priv. applies in the case and the contents of the letter can’t be discussed. However, unless the clt. waives the priv., the deputies can’t mount a defense and thus, can’t be punished?
That makes no sense, and turns the concept of att-clt on its head. Obviously, there has already been a hearing as to whether the contents were privileged. If the contents were privileged, then all that matters now is that the deputies violated that privilege. Now, they can argue as to whether that violation was defensible, i.e. they had good cause to believe that there might be something threatening in the letter, but that doesn’t erase the fact that there was a violation.
Judge Donohue is essentially stating that what was contained in the docs somehow has some bearing on the deputies actions. It doesn’t. It’s completely irrelevant. What was contained in the docs is only applicable to whether privilege applies. If privilege was found not to apply, then what the deputies did wasn’t contempt. If it was found to apply, then it could be contempt, depending if they had reasonable cause to believe that there was something there that placed the court in some sort of danger or if the lawyer was a party to a crime. Absent that reasonable cause (or probable cause–I’m not sure exactly what standard applies without some further research, though I bet it’s PC), the deputies are in contempt.
Regardless, Judge Donohue’s insistence that the atty-clt priv. be waived in order to determine whether the deputies had good cause is exactly backwards–they had to have good cause to look at the documents, not the documents give them good cause.
Of course, this is Maricopa county, and the judge is probably owned by Sheriff Joe “Boss Hog” Arpaio. Glad to hear that the FBI is finally looking into what’s going on there: http://www.kpho.com/news/21470567/detail.html
That’s a neat trick. Circumvent attorney-client privilege, and have the judge refuse to do anything about it unless the defendant waives attorney-client privilege.
After watching the original video, I’m not sure the judge isn’t in on this. She acts like Anna Nicole in the clown video, slobbering around like she doesn’t know what’s going on. She then tells the defense attorney that *she* needs to calm down. The judge needs to lose her job – if she can’t maintain any better order in a courtroom she needs to see if McDonald’s is hiring.
But the follow-up – we can’t hold them in contempt unless we dump attorney/client privilege for the letter – really makes me think she’s in on it.
where was this judge looking the whole time the defender was addressing the court? Seems like the desk RIGHT behind her podium would be in her line of sight.
If the document contains a threat or something that legally justifies taking it, is it even protected by attorney-client privilege? I thought attorney client privilege didn’t protect anything that was illegal.
In other words, if seizing it was justified, then there is no attorney client privilege to waive.
Although, I could be completely full of shit.
If it weren’t the Roberts/Scalia/Thomas court, I’d be interested in seing what SCOTUS had to say about this.
As it stands, Scalia would probably say that solicitor-client priviledge isn’t enumerated in the Constitution, therefore….
@ Dave Krueger | November 3rd, 2009 at 6:01 pm
Even if the documents are a detailed plot to do something illegal, I think they have to get an order beforehand to see the documents.
First of all, the lawyer should have kept her things to herself. It’s a pain in the a$$, but every attorney knows you can’t leave confidential information laying around on counsel table, even if “no one” is around. Plus, when your clients see you do that, they get cranky & think you don’t care about them.
Second, what the deputy did was sleazy, but I don’t think it was illegal (unless Arizona has some kind of criminal invasion of privacy law that would cover this situation), which is probably why there is a contempt of court rather than a criminal action here.
Third, waiving attorney client privilege should not be an issue in the contempt proceeding. The deputy walked up to the table and rifled through the papers without seeing anything other than the fact that the defense’s back was turned. He could not have known what was in the letter until he pulled it out to read it. THAT is the action that is contemptuous. The contents are immaterial.
What caused the deputy to walk across the courtroom to the stack of papers next to the defense attorney? Presumably he didn’t see any “keywords” from his original position. Were the keywords on the top paper? If not, what caused him to look underneath?
Finally, can it really be true that the presence of certain words on a defense attorney’s document legally entitle a detention officer to seize that document?
@Dave Krueger
You are correct, in that privilege never covers illegal activity. However, the documents here have already been held to be covered by privilege. That would imply that there was already an in camera hearing to determine this. If there wasn’t an in camera hearing, than the Judge is operating under the presumption that there was privilege. Either way, at that point the deputies have to point to their reasonable cause, or good cause, or whatever, that made them think that the documents weren’t privileged.
Regardless, waiving the privilege is completely irrelevant to whether or not the deputies should be found in contempt. You don’t look at the documents after the fact–all that matters is, if the documents are determined to be privileged, what reason the deputies had for believing that they weren’t.
@Aresen
I’ve never been kind to Scalia in the past, but this is one area of the law that he’s been pretty reasonable on–he’s a purist when it comes to the sacrosanct nature of the courts, and things like atty clt. priv. are so ingrained into lawyers that….well, my jaw dropped when I first saw the video. You. Just. Don’t. Do. That.
Heck, I watch what I say with my wife, who’s also an attorney, when we talk about each other’s day. We have to be careful not to spill priviliged info. It’s that important to us, that we won’t even tell each other.
Oh, I’ve no doubt it wasn’t planned in advance with the judge explicitly in on it.
But that’s not how it works. The judges, the prosecutors, the police, the investigators, the politicians – everybody at every level of the criminal justice system understands they’re on the same side, and acts accordingly. With very few exceptions, they’ll all back each other up in every situation by default.
That’s why misconduct by all individuals involved in the criminal justice system is so common. The cops busting down the door feel free to shoot first and ask questions later because they know from experience that everybody from their cop buddies to the DA to the judge will back them up if and when it’s necessary. The conspiracy isn’t explicit, it’s implicit.
That’s what’s happening here. The judge is backing up the cops because that’s just the default behavior for people in the criminal justice system.
SusanK:
People SHOULD be careful with privileged documents. That said, the defense and prosecution are, in my experience, usually far enough apart and far enough from the public booths that it is not easy to see what is on documents. The only people who have free reign to wander around the courts are the marshalls, in order to keep order. If defense attorneys feel that the marshalls are entitled to snoop on behalf of the prosecution, then it could seriously hamper the defense. Perhaps that is the problem: until some scumbag gets off because the defense was unable to present a proper defense because the judge cannot control the marshals.
One more quick note–atty clt. priv. usually refers to what the atty can and cannot divulge. Also, it’s listed in all the court rules as to what sorts of info you can’t force an attorney to give up. However, the decisions relating to this sort of thing (I don’t remember the exact SCOTUS cases) generally hold that you can’t have effective assistance of counsel if the govt. has some sort of power to take a look at your defense’s case file and work product. So what the deputies did, while colloquially referred to as violating the atty. privilege, is actually a civil rights violation. It probably is illegal under AZ law too, but in it’s broadest form, civil rights violation.
Sorry, I meant “perhaps that is the INTENTION of Sheriff Joe”
Salvo: “Honey, let’s go to the bedroom and…”
Ms. Salvo: “I’ll have to get leave of the court, first.”
;P
Well, this is sort of on topic.
http://liveshots.blogs.foxnews.com/2009/11/03/helmet-cams-for-cops/
I bet it doesn’t last very long. :)
I don’t think I could have myself from uttering a WTF or two in the courtroom. Even if it was a clear and present danger, as the storm troopers like to say, why the *hell* didn’t Barney bring it to the courts’ attention, rather than sneak it out the side door?
i would have said i want him (the deputy) charged with theft.
That nails it perfectly. I remember during the OJ criminal trial there was discussion in the media about the cops and prosecution conspiring to manufacture evidence to convict OJ. The rebuttal always went something like,“Oh, sure! Everyone got together in a room and decided they were going to falsify evidence.”
I am by no means a believer that OJ was framed, but I’m smart enough to know that conspiracy doesn’t require explicit agreement ahead of time as to what part everyone is going to play in some plan. Conspiracy can be subtle and so commonplace that it’s almost unconscious. And yet, at no time did I hear anyone make that point the entire time it was discussed. The naivete exhibited by those who think cops have no motive to “enhance” their case is astounding.
The culture that prevents cops from ratting out other cops is so pervasive that I don’t think anyone can ever be confident that cops haven’t lied or tampered with evidence. If they did, how would we ever know? They’re the “good guys”, so even if they did, it would be doing “god’s work”.
Having now finally viewed the clip, I’d like to know why the judge didn’t come out of her fucking chair and demand to know what the fucking deputy was doing as soon as he started doing it. The attorney’s back might have been turned, but the judge had to have been watching the entire fucking thing.
Excuse my French.
How can they possibly claim some bogus “key word” defense. The officer clearly took something from inside the folder in the middle of the stack of papers!
This is a totally new one for me. I have seen some pretty casual things go on in court rooms before but not this.
Also, as for the folks on the attorney client privilege debate, the rules on that vary, sometimes quite widely, state by state. In Maryland for example one is almost never obligated to disclose anything even if it is illegal. There are situations where one “may” disclose things pursuant to the rules of professional responsibility as well as times where you can seek leave to no longer represent a client. It’s against the rules to facilitate wrongdoing but in this state we’re generally taught to err on the side of not disclosing privileged information no matter what. The idea is for your client to be able to be as honest with you as possible.
Like SusanK said this probably isn’t illegal absent some invasion of privacy law. You could probably argue, however, that one has a reasonable expectation of privacy in your attorney’s files and keep anything the deputy found in it from being used as evidence. However it doesn’t sound like it fits into any prosecutable offense I’ve ever heard of, hence the contempt hearing.
It’s a pretty odd scenario. You hear a lot of weird ones in law school but I’ve definitely never heard of anything quite like this.
Money quote on Arpaio:
“”When you cross this guy for legitimate reasons, you’re going to find yourself under criminal investigation for completely illegitimate reasons”.
Naivete award winner:
“(Arpaio’s actions are) absolutely unacceptable,” Iglesias said. “We don’t do think kind of thing in America — in this country — without some kind of consequences.
I guess this is why it’s usually against the rules to take video in court.
And – how long do you think before whoever took it is punished, if they can figure that out?
If I may quote a friend of mine:
“If you weren’t doing anything wrong, then you have no reason to be afraid while they kick the crap out of you.” – DAR
I’m not sure that the defense attorney “keeping cool” was the way to go. I would have shrieked like a banshee. The difference between me and the defense attorney is that I am OLD and have no dependents and don’t give a rat’s ass what a judge thinks of me.
Insofar as the arguments about the defense counsel leaving things on the table? The scumbag deputy fricking DUG for that document. When I’m in a hearing or trial, my table looks like a bomb hit it. That’s because we should EXPECT the people in the room to act like they are honest. I swear to GOD that I would have tackled that government costumed goon had I been the one seeing him do that crap.
Balko, I would like to think that none of the deputies in my county would do this. I get along pretty well with all of them. But if one did that to me, I would deck him, right there in the courtroom.
Me no lawyer, but me know shit when I smells it.
How many times has this happened with the deputy not getting caught? Was this normal behavior in this particular judge’s court?
Ok. I wrote the head judge on the website about the trial judge’s lack of action. My head is about to explode over this.
@27:
Except it is illegal in a gross violation of civil liberties way. I’m positive I remember reading a SCOTUS decision in law school that addressed a similar sort of situation: govt. official attempting to force a defense attorney to turn over work product. The holding was that in order for there to be a right to effective counsel, the defense could not be interfered with, intimidated, or forced to turn over their work. Therefore, if a sheriff’s deputy is stealing work product from the defense, it’s violating the defendant’s right to effective counsel, which is a fundamental civil right.
The best way to handle it is contempt, yes, but I have no doubt that the Justice Department could file an indictment over this sort of shit. This isn’t just violating a state law; this is a government official taking away a basic civil right.
Believe it or not, that’s even wrong here in Maricopa County. I wasn’t there and have no inside knowledge, but after watching it I get the feeling the sheriff may be implementing a new policy of making sure every violation of confidentiality and privilege is so comically over-the-top that people think it’s a joke.
Legal analysis contortions aside, this is about a person walking over to a table containing a file belonging to someone else and rifling through it and taking something from it right in front of a judge. This is about a judge who apparently has goose-poo for brains.
This has made me nuts. I just called and left a message for the presiding judge about the fact that the weenie-ass judge let a crime happen before her stupid-ass face. Thank God that I am old and that no one but 3 dogs and a cat depend upon me.
here’s the problem that I see. How can you know what is in the paperwork, illegal or otherwise, without looking? 4th amendment, works product, atty clients, and so forth generally bar looking at all.
The defendant was apparently the only person in the courtroom possessed of a single fucking clue.
He was aware of the motion behind him and kept turning to keep an eye on it (a valuable jail survival skill).
When his attorney finally noticed the activity behind her and turned to ask what was going on, Stoddard said something that apparently placated her, so she sturned back to address the court. Then, after Lozano said to her, “He took that paper from the desk”, and ONLY then, did she start to develop a clue.
Even the defense attorneys are so wired to believe the police that she didn’t think anything was really wrong until then.
ASusanK:
No. It is a at least two crimes (see Ariz Crim Code sections below). Also, the judge must allow the preservation of trade secrets (which the writing on the paper clearly is) during prosecution. perhaps most exciting, if the paper was considered to be “taken from the person” then we have a . . . . wait for it . . . eff-to-tha-ee-to-tha-el-to-tha-oe-to-tha-en-to-tha-why? Because we love you!
=====================================================
13-2810. Interfering with judicial proceedings; classification
A. A person commits interfering with judicial proceedings if such person
knowingly:
1. Engages in disorderly, disrespectful or insolent behavior during the
session of a court which directly tends to interrupt its proceedings or
impairs the respect due to its authority; . . .
B. Interfering with judicial proceedings is a class 1 misdemeanor.
=====================================================
13-1801. Definitions
A. In this chapter, unless the context otherwise requires:
. . .
4. “Deprive” means to withhold the property interest of another either
permanently or for so long a time period that a substantial portion of its
economic value or usefulness or enjoyment is lost, to withhold with the
intent to restore it only upon payment of any reward or other compensation or to transfer or dispose of it so that it is unlikely to be recovered.
. . .
10. “Obtain” means to bring about or to receive the transfer of any
interest in property, whether to a defendant or to another, or to secure
the performance of a service or the possession of a trade secret.
. . .
12. “Property” means any thing of value, tangible or intangible,
including trade secrets.
=====================================================
13-1802. Theft; classification
A. A person commits theft if, without lawful authority, the person
knowingly:
1. Controls property of another with the intent to deprive the other
person of such property; or
2. Converts for an unauthorized term or use services or property of
another entrusted to the defendant or placed in the defendant’s possession for a limited, authorized term or use; or
3. Obtains services or property of another by means of any material
misrepresentation with intent to deprive the other person of such property or services; or
4. Comes into control of lost, mislaid or misdelivered property of
another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person’s own or another’s use without reasonable efforts to notify the true owner; or
5. Controls property of another knowing or having reason to know that the property was stolen; or
6. Obtains services known to the defendant to be available only for
compensation without paying or an agreement to pay the compensation or diverts another’s services to the person’s own or another’s benefit without authority to do so.
B. A person commits theft if the person knowingly takes control, title,
use or management of an incapacitated or vulnerable adult’s assets or
property through intimidation or deception, as defined in section . . .
while acting in a position of trust and confidence and with the intent to
deprive the incapacitated or vulnerable adult of the asset or property.
. . .
D. At the conclusion of any grand jury proceeding, hearing or trial, the
court shall preserve any trade secret that is admitted in evidence or any portion of a transcript that contains information relating to the trade secret pursuant to section 44-405.
E. . . . Theft of any property or services valued at less than one thousand dollars is a class 1 misdemeanor, unless the property is taken from the person of another . . . in which case the theft is a class 6 felony.
. . .
If no one prosecutes, then it doesn’t much matter if it was a crime. Remember, government isn’t constrained by law. What they do is limited only by what they can get away with (which is a lot).
There may not be a criminal prosecution, but the defense attorney can and should in civil court sue for theft of trade secrets. I think the two detention officers immunity is only qualified, rather than absolute, and the civil case would lead to good publicity / precedent for the criminal defense bar.
Seems like a good pro bono case for Perkins Coie Brown & Bain or some firm like that.
I know I will be in the minority in my opinion on this, but I don’t think in cases like this a trial is even necessary for the officer. A higher court should be able to simply look at the video, note the illegal behavior that happened in the court and sentence the officer, without trial, to the punishment provided for by the law.
In court, **everyone** should be on trial at the same time, by law. The prosecutor, the police, the defendant, the defense attorney, the witnesses and expert testimony… everything they do in court or that is revealed by the trial should be subject to the court and jury for sentencing.
They should at least be able (and willing) to summarily boot his ass off the job. Government seems to grant an extraordinary degree of latitude for mistakes when it comes to “their own kind”.
Seems to me there is a Fourth Amendment issue here. Does an attorney have a “reasonable expectation of privacy” with respect to a case file that, albeit open on counsel table, is not “readable” without the close approach of the deputy shown in the recording? Surely the answer to this question must be yes! Moreover the deputy seems clearly to be reading the contents of a document (a search) and then lifts it from the file (a seizure). I would infer that the other deputy to whom the document was handed made a copy and then in full view of the judge returns it to the first deputy and he in turn puts it back.
BTW, what were the prosecutors and the judge doing while this incident takes place right under their noses and in plain view?
I used to do that a lot as a defendant.
I’d tiptoe over to the Prosecutor’s files and
steal the most relevant stuff and stuff it in my jail-issued pants.
At #36
I see what you’re saying but we both know there isn’t going to be an indictment over something like this. It isn’t pretty but it’s the reality of separation of powers. The AG isn’t obligated to indict because it’s within his discretion and even if he was inclined to he has an obligation to allocate resources to cases he thinks are worth the investment. As stupid, bumbling, and thuggish as this is I can’t foresee them being willing to spend money on it.
The proper (and more realistic) remedy here in my opinion is civil. I would definitely sue under whatever civil rights lawsuit scheme they have out there and would also hope that the deputy is fired or at least no longer allowed to be in a court room. I think holding him in contempt and if possible barring him from further court room assignment would also be completely appropriate.
Also be calm Jerri. While I agree that the defense attorney should’ve made a bit more of a stink keep in mind her delicate situation. Her duty is to her client first. Overdoing it may not have been in her client’s interest. She properly raised the issue so it’s at least on the record and further action can be taken based on it. Not the answer people like to hear but in practical terms that isn’t the worst positionto be in.
You people have never properly absorbed American morality. There are good guys and there are bad guys. Whatever the good guys do is good. Whatever the bad guys do is bad.
Prosecutors, police officers, soldiers, etc. are the good guys. Defendants, defense attorneys, etc are the bad guys. You’re not supposed to help the bad guys win!
Judge Flores is a “Former member, Arizona Peace Officer Standards & Training Board.”
@49
Oh, I agree. There would never be indictments over this sort of action, and contempt hearings are the best way to handle this. That being said, I was making the point that this was clearly illegal, regardless of how it’s handled, and should the gov’t wish to waste their time to a single civil rights violation, they *could* do so.
That being said, it bothers me that the presiding judge didn’t start contempt hearings right away. This is….well, to me it’s sacrilege–about as bad as you can go. Maybe I just took my professional responsibility courses way too seriously.
At #42
Nothing wrong with taking that stuff seriously and I commend you for it. :)
Nice job Dave W. I was too lazy to look up Arizona law.
Mike T. (#45) is actually right – on criminal contempt of court involving an occurrence inside the presence of the court, a trial is NOT necessary. The judge could have held the deputy in contempt the moment she saw him messing with the attorney’s papers. It’s the difference between civil and criminal contempt.
Everytime I see “keyword defense”, I think Chewbacca.
This is the daily angst of criminal defense in Nazicopa County. Outrageous conduct on the part of Arpaio goes unpunished, unless Michael Manning extracts a few million bucks in civil penalties. That money doesn’t come out of Sheriff Mussolin’s pocket, so he doesn’t care. Anyone who crosses him is instantly under investigation. The Justice Department’s year-long investigation has borne no fruit. Are they afraid too?
Perhaps Nazicopa County needs a Huey P. Newton.
When people say “you need to be careful with privileged documents” they usually mean you shouldn’t leave them on the bus or on the table in restaurants when you go to the toilet. It really means you shouldn’t be careless with them. The idea that you need to be careful with leaving them stacked up under a cover sheet while you’re making your submissions to the judge because a deputy might take them off your table in the courtroom has never occurred to me before.
In response to “What the..” Judge Donehue should have dealt with this matter at that time…..I believe the second deputy made a copy of the piece of paper that was handed to him. The Kansas FBI should investigate all involved with the missing paper. I am curious to learn if this is something that goes on all the time in Judge Donehue’s courtroom….the drama thickens!