This post was mentioned on Twitter by olivertownshend: The Deputy who helped himself to the defense attorney’s casefile http://bit.ly/RnS0S...

74.Seamus says:
yao: “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.

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.”

So, since the deputy put the document back, I guess this would be joyreading?

public_defender: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 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.

public_defender:… the reason we’re ticked at the officer is that he interfered with the rights of a criminally accused man.

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.

public_defender: In theory, you could get to the jury with these “theft” facts, but thi is not what the theft statute was intended for.

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.

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

… the reason we’re ticked at the officer is that he interfered with the rights of a criminally accused man.

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.

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.

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.

Oren: That affidavit killed my parents!

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

Order of the Coif: 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.

It’s a good thing prosecutors and judges (and PDs) are all drawing water from the same well…

public_defender: 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.

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.

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.

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.

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.

Seamus: 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.”

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

To be a bit ghoulish for a moment: six shots and you didn’t kill the guy?

After the latest usage, I wondered if I was missing something, and went to La Wiki.

About the only defense I can think of here is the Plain View Doctrine.

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.

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.

yao: “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.

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.”

Railroad Gin: 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.

Another good reason for the feds to get involved. He couldn’t muster much retaliation against federal courts, beyond whining about persecution by liberals.

yao: “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.

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.

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.

Jerome Cole: The exchange between Prof. Kerr and Cleanville is one of the most bizarre I have ever seen online.

I get the feeling Cleanville didn’t care for their grade in Prof. Kerr’s class.

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.

Baueresque: 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. </P.

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.

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.]

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?!?