A lot of people have e-mailed me asking for my thoughts about a disturbing video that Radley Balko posted recently. The video shows a criminal court hearing in which a deputy assigned to court security walks over to the defense attorney’s papers on the counsel table and starts to look at the papers. Eventually he reaches down and pulls out a document from the stack of papers, passes it off to another deputy, and then the other deputy walks away with it. (The real action starts around the 1:30 mark.) As I understand things, it’s not clear from the video what the officer was looking for, what he thought he found, or why he took the paper.
My own thought is that it’s outrageous: If I were the judge, I would be steaming mad unless the deputy had a pretty damn good reason for doing what he did. The most obvious remedy is to hold a hearing on what happened in to determine if the deputy should be held in contempt of court. Indeed, the first part of a hearing was held this week, with the remainder to come next week. (H/t: Scott Greenfield)
Based on the media coverage of the first part of the hearing, it looks like the officer’s efforts to explain himself were a dud, but that the hearings are getting stuck on the question of attorney-client privilege. That is, the defendant in the case doesn’t want to waive his privilege, which means that the document’s identity and significance is a secret. And that in turn means that the deputies apparently can’t give the reason why they took the document, if they actually have any reason to give, which we don’t really know.
So my overall assessment is that this looks like a mess: It’s hard to see how the deputy could have had a valid reason for looking through the files and taking the document. On the other hand, right now the privilege issue is getting in the way of getting to the bottom of it.
ArthurKirkland says:
What kind of district attorney, and what kind of sheriff, would create an environment in which a deputy would be bold enough to steal in a courtroom?
Those two must be disgraces to their professions.
Quote
November 5, 2009, 12:09 amPatHMV says:
If I recall correctly, there’s a mechanism for the defendant to testify in a pre-trial hearing to determine whether particular evidence was lawfully seized or not, without waiving his ability to plead the 5th and refuse to testify at trial. Is this correct? If so, it would seem easy enough to allow for an in camera review by the judge, or a closed, sealed courtroom if the issue is that the defendant doesn’t want the public to know what it says. If the issue is that the defendant doesn’t want the judge sentencing him to read it, then fine, refer the contempt hearing to another judge to hold the closed hearing, certifying that he won’t tell the sentencing judge.
If the deputy’s excuse is that he had earlier gotten a “plain view” glimpse of, say, a threatening document, then let him testify under oath to that, and the judge can decide whether, even assuming the document seized to be threatening as the deputy claims to have earlier observed, the deputy’s actions were justified.
They won’t be, of course, because I can think of no circumstances whatsoever which would allow a law enforcement officer to surreptitiously steal a document from a defendant or defense counsel in the middle of the courtroom.
But the judge doesn’t seem interested in finding such a resolution, based on his flat statement that he won’t hold the officers in contempt unless the defendant waives privilege. That also seem entirely wrong.
Quote
November 5, 2009, 12:43 amOrder of the Coif says:
I’m sure the Deputy had a “good faith” belief that what he was doing was constitutional. ;-)
What I’ve read concerning the second judge hearing the matter doesn’t portend well for justice being done.
When I was a public defender I never left a “hot” file in the office, I carried them in my locked briefcase at all times. My court room files were always closed when I left the table because every criminal lawyer or cop that I knew could read upside down (including me). At lunch I locked them up in my briefcase (which I did, perhaps stupidly, leave in the courtroom).
If I had been the lawyer here, I’d have called as much attention to the act as I could. There are times when you have to risk censure. This, IMHO, is one.
As for the police, my impression was (and still is) that they have a “good faith” belief that whatever they can do, they are authorized to do. Unless there is a government lawyer standing there saying “no,” they go ahead. Since, as a practical matter, they got promoted because of constitutional violations that work, their attitude is why not try it.
Quote
November 5, 2009, 1:07 amNathanM says:
Even if one assumes that there was something improper in the lawyer’s file, which seems to be the most favourable position for the deputy, I don’t see how that excuses his actions. He shouldn’t have read anything in the file in the first place. A “plain view” defence doesn’t make any sense to me, because even if a document is in plain view you don’t know what it says unless you choose to read it. Surely sheriffs have no right to read the contents of lawyers’ files.
I know when I see a document left in plain view by opposing counsel I take care not to glance at it, let alone read any of it, and I expect the same for my documents.
On a side note, I also don’t understand the linked criticism of the defence lawyer because she doesn’t “go nuts” when she realizes what has happened. Even if one thinks a judge is “ridiculous” an “angry argument” seems unlikely to be in the client’s interest.
Quote
November 5, 2009, 1:16 amPinandpuller says:
Now I’m no lawyer but doesn’t the defendant have any recourse based on incompetent representation?
I think she forgot a coversheet for her TPS report.
Quote
November 5, 2009, 1:20 amPatHMV says:
That’s admirable professional courtesy, but I don’t think it is in any way a legal requirement. “Order of the Coif” has the right idea. You don’t want stuff read, don’t leave it lying face up on top of the stack in a public, open courtroom.
Quote
November 5, 2009, 1:20 amjhubme_24 says:
...this is fine, but if we “RTFA” (not meant to be derogatory to the quoted commenter), “he swiped the document from the middle of the file.” So, assuming that the law enforcement officer could not discern the contents of the document from plain view, shouldn’t his willful infringement of the privacy between client and attorney be punished?
Quote
November 5, 2009, 1:33 amPatHMV says:
Quite correct, jhubme, as I stated earlier. That’s why I specified face-up at the top of the stack, to indicate that I was not talking about this deputy’s exceedingly inappropriate behavior.
By the way, I recommend watching the video, not just R-ing TFA, so that you can see exactly what happened. The deputy kept staring at a document on top of the stack, then he calls another officer over, then he grabs a document which pretty clearly appears to be in the middle of the stack and hands it to him.
Quote
November 5, 2009, 1:46 amgwinje says:
At lunch I locked them up in my briefcase (which I did, perhaps stupidly, leave in the courtroom).
You must’ve been a PD before 9/11. I summered in a major PD’s office in about the most collegial arraignment courtroom you can imagine, and we almost evacuated a giant courthouse over the DA’s lunch cooler.
As to the post, I initially thought it was probably a list of defendants in the tank, or some court paperwork that got mixed up on the PD’s desk, but if not, that’s pretty, um, uh, bad.
Quote
November 5, 2009, 1:52 amDisintelligenstia says:
I’m really curious what kind of DOCUMENT could have constituted a threat to courtroom security when the Defendant in question is already in custody and shackled. Was the defendant going to use it to give the judge a paper cut? How can the judge herself be so dense as to give any credence whatsoever to his lame excuse? The judge was telling the defense counsel to slow down and take a breath and then telling her that the deputy IS in charge of securing the safety of the courtroom. Can she even hear what she is saying? The behavior of the deputy is inexcusable but so is the judge’s lack of interest in her deputy’s incredibly offensive actions taken in her courtroom during a hearing she is presiding over. I was agape at her interest in rehabilitating her deputy’s position.
Quote
November 5, 2009, 2:06 amGuest12345 says:
If you watch closely you’ll note that the paper that was taken was inside of a folder. At the one minute mark, Stoddard slides the document an inch or two out so he can read it. At the 1:34 mark you can see he opens up the folder to pull the paper out. It’s pretty clear from the video that whatever was taken wasn’t sitting there in plain view.
Quote
November 5, 2009, 2:08 amDon Pettengill says:
I don’t understand why this does not constitute, at least, simple theft?
Quote
November 5, 2009, 2:15 amMike McDougal says:
Do you think Sheriff Joe taught Adam Stoddard that trick?
Quote
November 5, 2009, 2:17 amaussie lurker says:
I’m not an American lawyer, so apologies in advance if this is a silly question: Why is this not a fourth amendment issue? I would have thought that the search and seizure of the attorney’s papers in itself is unlawful, so the arguing over privilege and the deputy’s weak explanation are really furphies. Or can the fourth amendment only be invoked as a shield if the state attempts to use unlawfully seized material in, say, a prosecution? Thanks in advance for any explanations
Quote
November 5, 2009, 2:20 amTim says:
Cops are above the law. Didn’t you guys know this? :-/
Quote
November 5, 2009, 2:29 amjhubme_24 says:
PatHMV,
Fair enough. Mea culpa. I was lazy and didn’t properly read your earlier post.
Quote
November 5, 2009, 2:34 amjhubme_24 says:
And, yes, RTFA but also WTFV, it’s despicable.
Quote
November 5, 2009, 2:41 amsitzpinkler says:
The attorney-client privilege mess stikes me as easy to resolve with a different judge for in camera review and sealed proceedings and possibly some Chinese walls.
Quote
November 5, 2009, 2:44 amFub says:
I’m shocked, utterly shocked, that anyone would suggest such an honorable public servant would even think of doing such a thing.
Quote
November 5, 2009, 2:44 amjhubme_24 says:
I’m certainly less knowledgeable on this than most other commenters, but what’s the argument against establishing a doctrine that a litigant’s attorneys’ files (especially in court) are not subject to any “plain view” exemption because they are presumptively privileged (and maybe there’s a stronger reason)?
Quote
November 5, 2009, 3:10 amdhlii says:
As I understand it the defendant and his lawyer’s priviledge in whatever document was lost the moment the deputy ran off with it — if not sooner. Minimally the priviledge of the top page was last if it was in plain site.
Whether the documents are still priviledged or not, the deputy should still minimally be cited for contempt. They can be no doubt that their behavior is disruptive rather than conductive of the administration of justice.
Whatever the deputies defense — it required taking an interest in the document BEFORE they were close enough to read them.
Presume this was not a court, say a diner, and the owner had a stack of documents behind the counter. The stack was visible to a cop/customer, but not readable from the other side of the counter. Without a reasonable suspicion that would need to come from something besides the not quite visible documents how does the cop reach behind the counter to rifle through the documents ? What if it was another party not a cop, wouldn’t that be theft ?
Quote
November 5, 2009, 3:29 amCleanville Tziabatz says:
Shorter Prof. Kerr:
Nothing to see here. Move along.
Quote
November 5, 2009, 5:16 amBill Poser says:
The statute authorizing Arizona LEO’s to seize evidence without a warrant applies only when the LEO witnesses an ongoing crime. It does not authorize seizure of evidence of a crime already committed or of a possible future crime. It seems to me that this very severely limits the use of this defense by Stoddard. What could he have seen that would be evidence of an ongoing crime? It isn’t sufficient that he have seen a plan to commit a crime or a threat, or an admission of a past crime. The only thing that comes to mind would be evidence of a conspiracy between the defendant and his lawyer to commit a crime. Were that the case, the privilege problem would not arise since neither a client’s plan to commit a crime nor communications in which the client and lawyer plot a crime are privileged.
Quote
November 5, 2009, 5:26 amPersonFromPorlock says:
Surely, regarding ‘the privilege issue’ as anything but a transparent attempt at stonewalling by Judge Donahoe is a bit ingenuous?
Quote
November 5, 2009, 5:30 amCleanville Tziabatz says:
Surely, regarding ‘the privilege issue’ as anything but a transparent attempt at stonewalling by Judge Donahoe is a bit ingenuous?
No, no. If defendant had swiped the papers from the prosecutor’s table and then plead necessity / self defense / defense of others based on some unspecified, but imminent, threat of harm she thought she read in the papers then Professor Kerr would surely be following the same exact same analysis because of his intellectual honesty. On a side note: anybody interested in a bridge?
Quote
November 5, 2009, 5:41 amalt.view says:
My guess is that the deputy is authorized to do so under the patriot act... ;)
Quote
November 5, 2009, 6:12 amCleanville Tziabatz says:
If I were the judge, I would be steaming mad unless the deputy had a pretty damn good reason for doing what he did.
Judge obviously saw him take the papers. If she gets angry, then the screw replies:
“Your honor, you saw me take the papers. In fact, you see me take the papers every time I do this, even a bunch of times when nobody saw and made such a fuss like this Mexican mafioso and his counsel are making now. If you don’t want me taking the papers when I perceive a risk to the court, then please just ask me nicely instead of yelling and threats of contempt. Respect is all I ask of the court. Please, just understand that there are certain risks that will befall the court if I am not allowed to fully investigate anything that I say that I feel, in my training and experience, is a security risk. Ya feel me, dogg?”
The detention officers held all the cards here and Judge Flores held none.
Quote
November 5, 2009, 6:31 amVisitor Again says:
The fourth amendment exclusionary rule, under which evidence obtained by virtue of unlawful search or seizure is excluded from the proceedings, obviously cannot come into play until the prosecution uses the illegally seized evidence in the case.
It is a long, long time since I researched governmental intrusions into the confidentiality that attends criminal defense preparation, and the law may have changed in the meantime. But there is a long line of authority, in both state and federal courts, including the United States Supreme Court, recognizing that the sixth amendment right to the assistance of counsel protects the confidentiality of defense communications and preparations from state intrusion. This right of confidentiality is independent of the attorney-client privilege. Some criminal cases have been dismissed without even a showing of prejudice where there has been a serious invasion of the defense camp by electronic surveillance, informer intrustion, theft and the like.
In the case at hand, of course, the conviction already has been obtained and the sentencing stage has been reached. But the defense might still argue for dismissal of the entire case. The defense might also argue for lesser sanctions, including perhaps barring the state from contesting the defense’s showing of mitigating factors or from producing evidence of aggravating factors.
Quote
November 5, 2009, 6:41 amVisitor Again says:
As an addendum, it’s likely the law enforcement officers in this case took the defense lawyer’s papers not for purpose of using them in evidence but because of the information they contained.
The fourth amendment exclusionary rule also comes into play when the prosecution seeks to use the products of an unlawful search and seizure under the “fruit of the poisonous tree” doctrine. So if the law enforcement officers learned through their illegal seizure of defense counsel’s papers information that led them to discover evidence of another aggravating factor they could produce at the sentencing hearing, the fourth amendment exclusionary rule might come into play.
But I would also make arguments based on the sixth amendment asking for dismissal and other lesser sanctions. The sixth amendment argument may also be used to support exclusion of evidence, of course, but it also may be used to ask for different sanctions.
Quote
November 5, 2009, 6:56 amCleanville Tziabatz says:
But I would also make arguments based on the sixth amendment asking for dismissal and other lesser sanctions. The sixth amendment argument may also be used to support exclusion of evidence, of course, but it also may be used to ask for different sanctions.
Hypothetical:
Lets say the defendant was found guilty and the jury dismissed. Sentencing phase starts under the same trial judge. trial judge duly hears all the sentencing evidence. The trial judges announces: I will now flip a coin and let the defendant call it. If she calls it correct, she gets the max sentence I am authorized to give. If she calls it incorrect then she gets the min sentence I am authorized to give.
Questions:
No remedy here because we can’t blame the defense attorney? Or does the Constitution have other rules and associated enforcement mechanisms against unfair judicial proceedings above and beyond 4A and 6A?
If there is a remedy, would it be limited to a remedy affecting only the punishment phase? Why? Doesn’t the fact that the trial judge acted so out of line at the punishment phase strongly suggest that the whole trial was infected even if the other hyjynx were hidden from view?
Comment:
Stop drinking Prof. Kerr’s Blue KoolAid, Visitor Again.
Quote
November 5, 2009, 7:10 amEric S. says:
Arthur Kirkland–
You need to read up on Joe Arpaio. Immediately.
Quote
November 5, 2009, 7:58 ampublic_defender says:
The PD’s mistake was to ask for a hearing at a later date. Cops love this. They often negotiate contracts that give them time after a shooting or other potential misconduct to get their stories straight (and make their perjury sound plausible) before they are interviewed.
The lawyer should have asked the cop (Detention Officer Adam Stoddard) to get on the stand immediately and testify under oath as to what he did and why. The delay gave Officer Stoddard the time to perjure up a story. Of course, Officer Stoddard would have had the right to take the Fifth or ask for counsel, but he should have been forced to make the same decision that his fellow officers force his fellow criminal suspects to make every day. (Taking a document he had no right to take is theft, and the video tape provides enough facts to make him a suspect and even to get to a jury.)
The judge’s position that the defendant must waive privilege to protect it is Orwellian. What good is the attorney-client privilege if you have to waive it to assert it?
The officer was a state actor. His actions are attributable to the State. The defense should be looking at prosecutorial and police misconduct cases that put the burden on the State to show a lack of prejudice. That way, the defendant’s assertion of his right to privilege would not act as a waiver of that privilege.
Quote
November 5, 2009, 8:06 amyoyo says:
Orin calls it “outrageous” and Cleanville Tziabatz interprets this as “Nothing to see here. Move along.”
Sure.
Quote
November 5, 2009, 8:11 ampublic_defender says:
If the statement the Officer Stoddard took was written by the defendant, couldn’t this be treated as a forced violation of the Defendant’s right to silence? Could the defense pull an Ollie North and argue that the State 1) took the document, 2) read it, and 3) required the defendant to further disclose the contents in order to protect his rights to silence and to counsel? Then the State wouldn’t have the burden of showing that the information had no part in the sentencing or prosecution of the defendant?
The defense might also consider asking for a special prosecutor and a visiting judge to avoid taint. Expensive. The county would then have to pay for the special prosecutor and the visiting judge, as well as lawyers for the officer and for the defendant. Very expensive glance.
The defense has a lot of options. I hope they research and implement them well.
Quote
November 5, 2009, 8:20 amBrian Larkin says:
From azcentral.com
Donahoe reviewed the paperwork in question on Friday and determined that the documents were subject to attorney-client privilege, Liddy said.
The only question remaining, Liddy said, is whether Stoddard was acting in good faith when he had the documents copied or whether he was in contempt.
He had the document COPIED! That puts a lie to his “good faith” argument. He may have a good faith reason to read the document (I’m skeptical though), but he certainly didn’t have a good faith reason to have the document copied.
What could have been on the document that would have made copying the document a valid procedure?
“Attorney lady, remember how we talked about how I was going to kill this judge if she gives me 18 years?”
“Thanks for smuggling the drugs to me last week”
These “commission of a crime” documents should prompt a different response than photocopying the document and telling the defense attorney that “everything was all right”.
But hey, I’m not a lawyer. The defendant sure saw something was amiss, if it hadn’t been for him calling out the document being taken we wouldn’t have this story.
Quote
November 5, 2009, 8:21 amCleanville Tziabatz says:
Let me explain what “outrage” really means in this context, especially because I think Professor Kerr might benefit from such an explanation.
Here is an example of an outraged response:
“If that were my courtroom, then both those deputies would have been sitting in a jail cell (and not a Maricopa County jail cell) on contempt (no, bail, sorry FOP) until we got to the very bottom of these privilege issues (and I tend to be real, real, real deliberate in deciding privilege issue because they are challenging).”
That is outrage. Here is a better one:
“If that were my courtroom, I would have had both deputies detained while I swore out an arrest warrant based on AZ C.C. 13–2810 (Interfering with judicial proceedings; classification, class 1 misdemeanor) and AZ C.C. 13–1802(A)(1)-(5) (Theft) of trade secrets and intangible information (see AZ C.C.13–1801 (4),(10),(12)) enhanced to be a felony pursuant to section 13–1802(E) (because such trade secrets and intangibles were “taken from the person” of another). Then I would have them arrested, based on my warrant, or, if police refused to assist me, arrest them myself, using deadly force only if necessary to protect my safety. They could certain argue their justification starting right after the grand jury indicted them on my personal testimony.”
Again, that is outrage. Of course, this approach requires some knowledge of the . . . wait for it . . . criminal law.
BOTTOM LINE: Professor Kerr may have said “outrage.” However, it is clear that he did not mean outrage. He meant something more along the lines of “Uh-oh Spaghettios!”
Quote
November 5, 2009, 8:44 amyoyo says:
Ah, thanks — I guess neither Orin nor I were aware that use of the word “outrageous” requires statutory support to show that you’re not lying.
Quote
November 5, 2009, 8:50 amVisitor Again says:
public_defender says:
The PD’s mistake was to ask for a hearing at a later date. Cops love this. They often negotiate contracts that give them time after a shooting or other potential misconduct to get their stories straight (and make their perjury sound plausible) before they are interviewed.
You are spot on about the timing point. But I didn’t think the PD asked for a hearing later on. I thought the judge said how about tomorrow morning. Then suddenly she put it off, stating that she couldn’t handle defendants who needed security, like this one, tomorrow morning. Since she wasn’t looking at her files around the time she declared this, my immediate thought was that she got some kind of signal from the prosecutors that led her to delay the hearing so all the law enforcement folks could get their story together.
Even more outrageous to me than the deputies stealing a document from defense counsel’s files and copying it while court was in session and in plain view of the judge was that the judge watched it going on, did nothing, and when defense counsel finally discovered what had happened and objected, told her to take a deep breath. Any judge worthy of any kind of respect at all would have called the deputies to account immediately, told them to produce the purloined document promptly and ordered them explain themselves right then and there. A further, more formal hearing might well have been in order at a later date, but there should have been some immediate action forthcoming from this judge. Instead, she acted as if it were a routine matter–and perhaps this kind of pilfering of defense files by courtroom deputies was business as usual, the only difference being that this time the defense caught them in the act.
And both these outrages have been compounded by the hearing judge, the chief judge in the county, insisting that the defendant must waive his attorney-client privilege before he takes any action against the deputies. The judge seems determined to squelch any real inquiry and any real consequences for this blatant and arrogant misconduct.
In the early Seventies, I had a defense intrusion case just as outrageous as this with a hugely irregular hearing–the cops held a gun at my head for more than 15 minutes outside my client’s home one evening just as I was in the middle of cross-examining officers from the local Red Squad–but going in to it would take more time than I have and quite possibly exceed anyone’s interest.
Quote
November 5, 2009, 8:55 amCleanville Tziabatz says:
here is another outraged response:
“If it were my courtroom, I would have demanded that they immediately got down on their knees and apologized profusely to defendant and his counsel and then offer to be spanked (with an appropriate amount of sincerity), all while making a video of it on my Handycam, which I then would have immediately uploaded to YouTube.”
that would be another way to do the outrage thing. No statutory cites involved.
The statutory cites are not what makes for “outrage.” The statutory cites allow the judge to express outrage through appropriate channels and without fear of repercussion. Be patient, yoyo. I am sure you will catch on.
Quote
November 5, 2009, 9:04 amVisitor Again says:
Stop drinking Prof. Kerr’s Blue KoolAid, Visitor Again.
When you start learning to be an advocate for a criminal defendant–or a client in any court proceedings, for that matter, Cleanville Tziabatz.
Quote
November 5, 2009, 9:05 amyoyo says:
Silly Cleanville, even now you don’t realize no one takes you seriously.
Quote
November 5, 2009, 9:10 amkrs says:
I agree with Cleanville that no one can sincerely use the word “outrageous” if it isn’t immediately preceded or followed with a stream of bogus threats. “Steaming mad” doesn’t cut it. Because if you’re not threatening to shoot police officers or making stuff up about trade secrets, then you’re clearly on the side of the jackbooted thugs who will stomp on our Liberties!
Quote
November 5, 2009, 9:14 amSeaDrive says:
The piece of paper in question had been soaked in a solution that made it potentially explosive. The deputy, identifying the distinctive aroma, took the dangerous paper, and was making a safe copy for the use of the PD.
Quote
November 5, 2009, 9:42 amjheath says:
My guess is having convicted this guy, the cops are looking to nail one of his friends rather than enhance his sentence. Can’t recall . . . if information in the purloined document leads the police to another criminal, is it still “poison fruit”, and can it be used as evidence or the basis of a warrant in another case?
Quote
November 5, 2009, 9:58 amMartyA says:
That was a strange tape. I got the impression that the document was either flagged, i.e., had a post-it on the edge of the page to make it readily available, or was simply sticking out of the file. It may also have been a standard form that was recognizable, even if only partially displayed, across the room.
I was also struck by how blatant the sheriff was. He didn’t seem to act furtively but walked right over to the desk and began rifling the file. He did not look around to check if anyone was watching him and had no concern for the camera(s?) which he must have known was there.
He also waived his colleague over without concern for what else was going on in the room.
It is like the sheriff discovered a confidential document that belonged to the sheriff and his colleagues. What? How, the morning’s shift sign in shift that is always posted on the board in the sheriff;s ready room and is only “touched” by the captain or his sgt., or something like that.
Think outside the court. In any business environment, can you envision one person having that kind of entitlement to someone else’s file or document?
As I say, it was strange.
Quote
November 5, 2009, 10:16 amBrian Larkin says:
Ahh... And of course having made the copy the original was now “deactivated” and could be handed back to the PD. Actually that’s not right, they didn’t hand it back to the PD, they put it back in her files. Nothing to see here.
Quote
November 5, 2009, 10:17 amOrin Kerr says:
cleanville,
Cleanville, I keep finding that when you comment, you either blatantly misrepresent my position, question my integrity, or (as here) both. What gives? I greatly enjoy serious, honest criticism, but your posts tend to be neither.
Quote
November 5, 2009, 10:29 amOren says:
That affidavit killed my parents!
Quote
November 5, 2009, 10:30 amCleanville Tziabatz says:
1. I don’t think that questioning someone’s intellectual honesty is the same thing as questioning that person’s integrity. The difference may be subtle, but I think that criticism of intellectual honesty is “fair play.”
2. In what sense are my posts dishonest? I was being sarcastic about the idea that you would be equally flummoxed by the situation if Ms. Cuccia had swiped the papers and then plead necessity. However, that sarcasm was: (i) clear on its face; (ii) interposed for a serious purpose; and (iii) intended to convey that we know (your coyness notwithstanding) that you would be singing a different tune if Ms. Cuccia had done the swiping and then plead some kind of justification that could only be debunked by a privilege waiver.
3. Now you could have responded to this serious, albeit sarcastic, criticism by telling us how you would be reacting if Ms. Cuccia had done the swipe from the prosecutor table. Instead, you act all offended by the suggestion that Ms. Cuccia would be in jail now if she had pulled that in your courtroom. I have news for you, Professor Kerr: Ms. Cuccia would be in jail now if she pulled that in your courtroom, whether or not the prosecutors chose to waive confidentiality. I know it. You know it. Everybody reading this blog knows it. You are not invisible.
Quote
November 5, 2009, 10:48 amZara says:
I guess I see the video a little differently than the others on this thread (those few who have looked at it anyway). It looks to me like the officer’s attention is caught by a document that is partially sticking out of the file; he then pulls it a few more inches out of the file and reads it; then motions another officer over, discusses it with him, and removes the entire document from the file.
As I understand it, he claims that he did this because he something in the document that suggested a threat to the security of the courtroom. I think, at best, the odds are that he overreacted, but I’m curious as to what other motivation people think he might have had (beyond being inherently evil because he is in law enforcement or because he works for Arpaio)? The defendant had already been convicted and his crime — assaulting another inmate? — does not seem to be the sort of crime that would inspire the police to hunt for evidence against accomplices. On the other hand, it is the sort of crime that might heighten concerns about security, either in the courtroom or in the correctional facility.
Quote
November 5, 2009, 10:53 amjalrin says:
Hopefully the U.S. Attorney will take note of this nonsense and prosecute the offending deputies under 18 U.S.C. §§ 241 and 242. If there ever was a case where the federal government needed to step in and defend the integrity of our legal system, this case would seem to be one of them.
Quote
November 5, 2009, 11:06 amDavid Nieporent says:
You should have seen him (her? it?) trying to argue that probable cause had been misinterpreted by every judge and lawyer in the country for a century.
Quote
November 5, 2009, 11:15 amrbj says:
I am not sure why the judge feels that the attorney client privilege trumps 4th Amendment search & seizure protection or outright theft here. The contents of the paper could remain sealed, but right now the judge isn’t doing that. This incident could be the basis for a nice law school exam question: what issues are involved and what defenses could the deputy bring to bear.
Are deputies in the habit of routinely walking over to stand right behind the PD during a sentencing phase when the defendant is shackled and making no threatening movements. If the officer does perceive such a threat — maybe the defendant has a history of violence, or maybe the officer had a good faith, if erroneous belief in such a threat — then why take his eyes off the defendant to examine in detail not just the top page of privileged communication but a document that is barely sticking out.
Quote
November 5, 2009, 11:18 amOren says:
We need a “best-of-Volokh” section where we can collect him, the late Jimbino (libel lawsuit, lol) and a few of Alridge’s collected works on our misunderstanding of citizenship.
Quote
November 5, 2009, 11:27 ampublic_defender says:
I don’t see any justification for the attacks of Professor Kerr. He said the officer’s actions seemed outrageous, but then questioned whether the law gave the defendant a meaningful remedy. That seems perfectly reasonable. I hope the defendant has a remedy. I’ve speculated about a few. But hope and speculation are very different from a winning legal argument.
Quote
November 5, 2009, 11:31 amCleanville Tziabatz says:
What might the document have said, hmmm . . .
“My client isn’t remorseful, so don’t plead that.”
“Ms. Defender, will you help me find a good lawyer to bring my prison rape civil suit? The only reason I got in this fight was to avoid being raped after all.”
“This judge is a yucky person with body odor.”
“My client is considering ratting out another inmate, but the other inmate will have him killed if the other inmate finds out.”
“Ms. Defender, I believe you will see some serious CO misconduct (of a sexual nature) if you can get your hands on the video from camera 6 on Oct 1, 2009 at 2.30 pm. Is there some way we can do that?”
If a guard saw any one of these remarks during screening (when they are not supposed to be reading them and cannot copy them), but wanted a copy (for obvious reasons), then how would the guards go about getting that copy? Bueller? Bueller?
Quote
November 5, 2009, 11:32 amCleanville Tziabatz says:
Um, no. The law gives plenty of remedies. The problem that we are dealing with in this thread is Professor Kerr’s conspicuous failure to remember them in this particular context. I don’t give out many F’s, but . . .
Quote
November 5, 2009, 11:38 amOrin Kerr says:
Cleanville,
If you would like to keep commenting here, please call my office at (202) 994‑4775 over the next few days, and let’s have a chat about it. After a good talk about it, I’m sure you and I can reach an understanding. Otherwise, you are no longer welcome to comment here.
Quote
November 5, 2009, 11:43 amLaura(southernxyl) says:
Um, what?
Quote
November 5, 2009, 11:51 amJerome Cole says:
The exchange between Prof. Kerr and Cleanville is one of the most bizarre I have ever seen online.
Quote
November 5, 2009, 12:18 pmAnderson says:
The exchange between Prof. Kerr and Cleanville is one of the most bizarre I have ever seen online.
And all on one side, at that.
Quote
November 5, 2009, 12:24 pmJohn R. Mayne says:
Quick hits:
1. It’s not theft. Theft generally requires the intent to permanently or long-term deprive. It’s not theft.
2. It’s unbelievable behavior. There’s a certain level of trust that goes on in court; I’m assuming you’re not going to go through my prosecutorial files. Sometimes, files with sensitive materials are left unguarded, but I’ve never heard of anyone leafing through them. (Defense attorneys reclaiming forgotten files off the court railing sometimes ask me if they were a good read; I’m prone to replying that I made copies to read later. Of course, we’re kidding.)
The violation here really hurts the ability for the attorneys and the court to function.
3. An immediate hearing seemed warranted. Contempt or administrative sanctions seem necessary. It strikes me that an in camera hearing could be held as to whatever it was that was seen, or the client could waive *only as to whatever was visible prior to opening the file*, which appears to be no more than one or two lines of text, if that.
4. Yeah, there’s all kinds of bad communication that goes on in jails, and some of it is on paper. That’s absolutely no excuse to go through a defense attorney’s file.
5. As to comment 58, it’s about time, and I appreciate the effort to maintain comment integrity.
–JRM
Quote
November 5, 2009, 12:47 pmDeoxy says:
This case is amazingly simple.
1) Anything in the file that would be legitimate for him to take is legitimate for him to break confidentiality on.
2) Anything else is NOT legitimate for him to take.
So, if he says he can’t break confidentiality on it, it’s not right for him to take it. If he does break confidentiality, and that shows that he shouldn’t have, then punish him for BOTH offenses.
Done. How hard is that?!?
Quote
November 5, 2009, 12:47 pmrbj says:
For me, this goes beyond a mere contempt of court, with a minimal fine. I would like a full investigation: is this an isolated incident — which might warrant a 30 day w/o pay suspension, is this a rogue deputy — which should lead to his firing & possible arrest & trial for constantly violating the 4th Amend., or does Sheriff Apario condone or encourage such behavior, in which case he needs to go.
Quote
November 5, 2009, 12:57 pmBaueresque says:
Enough with the contempt hearing . . . which is a potential “get of jail for free” card for this creep, which any shoplifter at 7–11 would never get.
Why not just prosecute the Deputy and his aider-and-abettor/accessory-after-the-fact/co-conspirator for felony theft, conspiracy to commit theft, and obstruction of justice.
The contents of the materials are irrelevant. The value of the materials — to satisfy any dollar threshold for a felony theft prosecution — can be established via the defense attorney’s testimony.
[Apologies if this point has already been made.]
Quote
November 5, 2009, 1:02 pmpete says:
Because that requires a prosecutor willing to charge them and it is not clear the prosecutors here are willing to do that. Which is why above posters have called for the feds to get involved or for the judge to call contempt hearings.
Quote
November 5, 2009, 1:22 pmyao says:
“1. It’s not theft. Theft generally requires the intent to permanently or long-term deprive. It’s not theft.”
Great, mind if I take your car for a spin? Just for a couple hours. Hot date, you know. I’ll bring it back afterward.
Quote
November 5, 2009, 1:36 pmrbj says:
About the only defense I can think of here is the Plain View Doctrine. And while I think it would fail, if it succeeded and the defendant was subject to additional charges and/or jail time, could he mount an ineffective assistance of counsel defense — for the PD allowing such a damaging document to be in plain view?
Quote
November 5, 2009, 1:39 pmEvan says:
I get the feeling Cleanville didn’t care for their grade in Prof. Kerr’s class.
Quote
November 5, 2009, 1:46 pmOren says:
Orin, your commitment to the comment section is absolutely remarkable. I should buy you a beer ...
Quote
November 5, 2009, 1:49 pmRailroad Gin says:
One thing to consider is that the Sheriff’s Office has the ability to retaliate against the Court if deputies start getting held in contempt. With someone like Arpaio at the helm that’s a real concern.
The Sheriff can use pretexts like manpower shortages and budgets to delay carrying out court orders or transporting prisoners to court hearings. He can generally life miserable for the courts.
The courts would eventually win this pissing contest, but it could drag on for years and have a lot of mudslinging that drags everyone down. At some level, this has been happening in Maricopa County for years.
From the judge’s point of view, he may want to avoid throwing more fuel on the fire. I’m not saying its right, but Arpaio’s ongoing shenanigans are the 800 lbs. gorilla that shouldn’t be ignored when evaluating how the courts are handling this.
That said, I can’t understand why the document can’t be reviewed in camera. The judge should be able to determine if there’s any basis for a security concern or if its all BS. It may be that further proceedings are necessary or it may be so blatantly obvious that a ruling can be made immediately. But this seems an obvious starting point.
Quote
November 5, 2009, 2:02 pmDavid Schwartz says:
That would certainly be a crime, just not theft. (Assuming you could convince people that you did in fact intend to return it afterward.)
And, by the way, add me to the list of people who want to know why this judge (or another judge if this judge still hears cases involving the defendant whose privilege is involved) has not held an in camera hearing to determine if the deputy’s “the contents of the document are vital to my defense” defense is even remotely plausible, since it seems like it could not possibly be.
Quote
November 5, 2009, 2:12 pmFub says:
Another good reason for the feds to get involved. He couldn’t muster much retaliation against federal courts, beyond whining about persecution by liberals.
Quote
November 5, 2009, 2:18 pmSeamus says:
What you’re talking about is not theft. The inability (or at least difficulty) of providing an intent to permanently deprive the owner of the car in such situations is, in fact, why many jurisdictions created the new offense of “joyriding.”
Quote
November 5, 2009, 3:07 pmDangerMouse says:
This is a sad episode, and it speaks to the pathetic way in which Judges seem more concerned with shuffling paper and keeping THEIR lives efficient and as easy as possible. That Judge is disgraceful. She watched the act as it happened and said nothing and did nothing, and then claimed ignorance when it occurred. I don’t see why she shouldn’t be considered a witness.
As for the cops, you have to expect that kind of behavior, especially in a courtroom where they roam at will and are “responsible for security” as if it gives them dominion over all that they see. They are above the law because they are never punished for things like this. Oh, and if the defense lawyer became more aggressive, it would’ve been her that would be facing a contempt of court charge. And the sheriff that stole her files would be the one slapping the handcuffs on her.
Quote
November 5, 2009, 3:10 pmArthurKirkland says:
I am no criminal defense attorney — far from it — but I can think of two others:
(1) After reviewing the tape: Insanity. (As Otter advised Flounder after Fred’s car was destroyed during the road trip in Animal House: “It’s gotta work better than the truth.”)
(2) After reviewing the records of the district attorney and sheriff: Selective prosecution.
Unless a once-in-several-lifetimes justification emerges, some time in a cell, pondering a career transition, seems appropriate for both of the deputies.
Given the brazen affront to the justice system — and the apparent disinclination of anyone in a state office to address it properly — I hope the United States Attorney for the relevant district has already summoned the sheriff and the district attorney to the federal courthouse for a discussion. (Can anyone identify the defect in the Phoenix electorate that places people such as Joe Arpaio and Andrew Peyton Thomas in office?)
This should be the trial judge’s final week on the bench, too.
Quote
November 5, 2009, 3:32 pmDan Weber says:
As a non-lawyer, I only just figured out that “in camera” means “in private” or “in the judge’s chambers,” and has no relation to the fact that this evidence was captured by a camera for anyone to review.
After the latest usage, I wondered if I was missing something, and went to La Wiki.
Quote
November 5, 2009, 3:42 pmASlyJD says:
Dan,
Huh. I would have though it would be El or Le Wiki, but since “encyclopedia” is feminine, it is La Wiki.
I love this blog.
Quote
November 5, 2009, 3:53 pmEric says:
It’s no coincidence that so many Criminal Law/Procedure cases from Arizona make it to the SCOTUS. Here’s another example of Arizona’s finest: http://www.courthousenews.com/2009/09/23/Family_Says_911_Tape_Caught_Cops_Planning_Cover-Up_After_Shooting.htm?=protectandserve
Quote
November 5, 2009, 4:17 pmrbj says:
Wow Eric. What an awful case, glad the homeowner survived. I do appreciate that cops are putting their lives on the line, walking into dangerous, unknown situations. But still you have to assess the situation first. Of course, those things happen in New York as well.
To be a bit ghoulish for a moment: six shots and you didn’t kill the guy?
Quote
November 5, 2009, 4:23 pmAnderson says:
More like “Das Wiki,” with a V-sound.
Quote
November 5, 2009, 4:26 pmJohn R. Mayne says:
California has a specific exception for vehicles — the intent can be to temporarily deprive for vehicle theft (or rather, VC 10851, which covers taking or driving a known stolen vehicle.) There’s no longer a joyriding statute, it having been subsumed by stricter rules for vehicle taking, and I believe most jurisdictions have changed the law on that.
The underlying point remains: This isn’t theft under federal and most (all?) state laws, period. Additionally, a claim of right — even if wrong — is generally a defense. It’s just not a theft-related crime.
–JRM
Quote
November 5, 2009, 4:45 pmBruce Hayden says:
I am a bit naive here. The justification seems right now to be that the deputy saw something that the screeners should have seen. But I have never had deputies going through my papers when I went through security when entering a court house, and would think that highly irregular. I just sent my brief case through the x-ray machine, and that was that (except that I would invariably bring along something that could be considered, in someone’s wildest imagination, a knife, and would hopefully have time to run it back to my car).
Quote
November 5, 2009, 4:45 pmArthurKirkland says:
Can anyone familiar with the relevant context describe what might have occurred had the defense lawyer summoned police, reported a theft and apparent conspiracy, and identified the deputies as the perpetrators?
Would a federal investigation properly include the judge and/or the prosecutors (as witnesses or accomplices)?
I recognize that these are extraordinary questions, but that is an extraordinary recording from the courtroom.
Quote
November 5, 2009, 4:56 pmEdward A. Hoffman says:
dhlii wrote:
Not so. The privilege cannot be destroyed by a third party under any circumstances. In most jurisdictions only the client can waive the privilege, and even then can do so only via intentional acts (though they don’t have to specifically intend to waive the privilege). Even if the document really was left where others could see it, that an unintentional act by the lawyer. It certainly wasn’t an intentional act by the defendant. Since neither the defendant nor his lawyer willingly let the deputy see what was in the file, the privilege remains intact.
Quote
November 5, 2009, 5:16 pmpublic_defender says:
I take back the allegation that taking the document was theft. As someone else pointed out, theft requires an intent to deprive the owner of use. Improper borrowing doesn’t count.
Quote
November 5, 2009, 7:31 pmFub says:
I would think a prosecutor who took police misconduct seriously would press larceny anyhow. Let the defendants try to raise reasonable doubt that they intended to permanently deprive at the time of the taking.
Just bringing it back isn’t dispositive. Maybe they had a fit of conscience after asportation. Defendants could testify to negative that interpretation of the facts if they choose.
There is no good reason for a prosecutor not to throw the book at sheriffs just like they do at ordinary citizens.
A serious prosecution would have at least the possibility of getting these fine and upstanding deputies on the stand and subject to rigorous cross examination on the record. Of course, that might reveal more than some political powers in Maricopa County would like revealed.
Quote
November 5, 2009, 7:57 pmSuperSkeptic says:
It’s a good thing prosecutors and judges (and PDs) are all drawing water from the same well...
Quote
November 5, 2009, 8:40 pmNickM says:
Paper cut to the carotid artery?
Oh, and you’d have to include the MKDP serial comments and her and her husband’s back-and-forth (especially when they were pretending to be unconnected) along with Aldridge, Cleanville, et al. in that “best of” section.
Nick
Quote
November 5, 2009, 11:08 pmThalia says:
Am I the only one whose main reaction to this is “someone ought to review ALL of the tapes in that court room”? Because the only reason this was remarked upon at all is because the defendant pointed it out to the PD. What do you want to bet that this has happened before, and no one pointed it out?
Every single lawyer who saw that (and that includes the judge and the prosecutors) who did not step up to stop this clearly improper behavior is in breach of their obligation to uphold the law. I’m not surprised (given that this is Maricopa County) but it’s still shocking.
I do agree with the commenter above who suggests that the Sheriff’s retaliation is likely the reason for this. Given the Sheriff’s history, and his recent arrest of his critics, I wouldn’t put it past him to arrest any judge who looked funny at his deputies.
Quote
November 6, 2009, 1:20 ampublic_defender says:
Fub,
In theory, you could get to the jury with these “theft” facts, but thi is not what the theft statute was intended for.
Remember, the reason we’re ticked at the officer is that he interfered with the rights of a criminally accused man. Now, the officer stands accused. Not formally, but accused nonetheless. I hope he’s punished for what he did, but he does have rights and the procedure against him has to be fair.
I spend my days demanding that the government follow the rules when trying to punish people accused of murder, rape and other crimes. I don’ see how I can demand that as to my clients, but then ask the government to suspend the rules to get someone I’m mad at.
I gave some ideas above about ways the defense lawyers might be able to help their client and punish the deputy, and I hope they find a way to do that, but they have to follow the rules. Fortunately, that’s what they went to law school to learn how to do.
Quote
November 6, 2009, 6:04 amSmarty says:
Only a lawyer could come up with the term “improper borrowing” and it is one of many reasons why most people do not hold lawyers in high regard.
Quote
November 6, 2009, 8:05 amFub says:
Having encountered, for just one example, a defendant who was charged with felonious trafficking for passing a doob to a friend at an outdoor concert, I’m not unsympathetic to your moral argument.
I’m just pointing out that, by analogy to von Clausewitz’ dictum, criminal prosecution is a continuation of politics by other means. In this case, the absence of prosecution when an obvious legal vehicle is available indicates that the prosecutor has made a transparently political decision to decline prosecution.
I would make one quibble with your secondary premise that
I would be equally ticked if the deputy had purloined either party’s papers in a civil case. The constitutional issues would not be the same, but the consequent corrosion of trust in the integrity of courts and law enforcement would be.
Quote
November 6, 2009, 1:54 pmdisconnect says:
I don’t see that Fub is recommending suspension of due process. These alleged criminals should be afforded the same rights as every other alleged criminal: a nice ride in the back of a car, personal attention while being booked, a spiffy orange jumpsuit, and being perp-walked in shackles into a courtroom to answer for his alleged criminal actions.
I’m livid at this (in a perfect world) future bowling alley manager for shitting on the very justice system he claims to protect. My sympathy for this particular defendant goes in a separate column.
Quote
November 6, 2009, 4:16 pmHarvey Mosley says:
So, since the deputy put the document back, I guess this would be joyreading?
Quote
November 9, 2009, 5:27 amuberVU - social comments says:
Social comments and analytics for this post...
This post was mentioned on Twitter by olivertownshend: The Deputy who helped himself to the defense attorney’s casefile http://bit.ly/RnS0S...