Was Suspension of Miranda After Boston Bombings Appropriate?

Gary Stuart speaks on Miranda rights.

How central is Miranda to our constellation of rights? When and how would we ever agree it would be acceptable to abrogate the rights gathered under the Miranda rubric?

That issue never arises on the easy cases, of course. In the workaday world, every police officer in the United States knows that the reading of the Miranda rights is an essential part of their role.

Arrests following a terror attack are not the easy cases.

That’s what we saw after the arrest of a suspect in the bombings at the Boston Marathon. The federal government announced that it was interrogating the suspect in advance of reading his rights.

We’ve understood for years that there may be emergencies that militate toward questioning-before-rights. For instance, if officials believed there could be timed explosive devices secreted around the city, they arguably should begin questioning immediately. Time will help explain if that is the situation that faced officials.

This Sunday, Gary Stuart examined the uneasy choices we make when we set aside basic rights. Gary is an experienced lawyer and author of “Miranda: The Story of America’s Right To Remain Silent.”

In his Arizona Republic op-ed, he traces the history of Miranda and subsequent rulings that have carved out exceptions to the rights.

Cagily, he leaves his powerful conclusion for the last three paragraphs. In case you are as impatient as I am, here they are:

“We should be wary about doctrinaire Miranda compliance in terrorist cases, especially where the public safety is at risk—as the Boston Marathon bombing clearly was.”

“Even so, balancing too far in favor of gathering intelligence by minimizing suspects’ rights might reverse five decades of Miranda application. While we want to win the war on terrorism, it cannot come at the price of returning to the bad old days before Miranda, when law enforcement was silent on the rights of suspects.”

“If law enforcement is silent and suspects are not, we might advance the war. But if domestic suspects have no rights, especially in terrorist cases, then those seeking to destroy democracy itself and replace it with a radically fundamental theocracy will have obtained one of their objectives.”

Read Gary’s entire editorial here.

What are your thoughts? Do we risk too much when we allow the pendulum to swing? Or does the government adopt a permissible position when it acts as it did in Boston?

Follow @azatty

 

Lawyer–Authors Honored for Their Contributions By @azcourts

This week I heard great news about some of my favorite people: Arizona Attorney Magazine authors.

Besides that admirable distinction, these two men are pretty remarkable in their own right. Paul Julien and Mark Meltzer both serve the Arizona justice system via their substantial positions at the Supreme Court.

Jeff Schrade (left) and Justice Scott Bales (right) present framed Arizona Attorney articles to lawyer-authors Paul Julien (center-left) and Mark Meltzer, April 2013.

As their humble and succinct bios say: “Paul Julien is the Judicial Education Officer for the Arizona Supreme Court, and was chair of the committee mentioned charged with reviewing and proposing changes to the Justice Court rules. Mark Meltzer is a specialist with the Administrative Office of the Courts, and served as committee staff.”

The news came my way from Jeff Schrade, once a colleague at the Arizona Foundation for Legal Services & Education, and now the Director of the Education Services Division at the Arizona Supreme Court AOC.

Jeff sent the accompanying photo and news about an event at which Court staff recognized the two men for their publication in Arizona Attorney. (I think that should be a tradition at every workplace!) The article they wrote for us provided valuable and timely information about changed rules applying to the much-misunderstood Justice Courts.

You can read the complete article here.

The opening to Paul and Mark’s Justice Court rules story, Jan. 2013.

Here is a bit about the award, in Jeff’s own words:

“Today I gave Paul Julien and Mark Meltzer framed copies of their Jan 2013 Arizona Attorney article about the Justice Court Civil Rules of Procedure. Vice Chief Justice Scott Bales made a special presentation to Paul and Mark at the conclusion of our Limited Jurisdiction New Judge Orientation, which took place this week at the Arizona Supreme Court Judicial Education Center in downtown.”

“The 20 new Limited Jurisdiction judges attending this three-week program gave Paul and Mark a standing ovation, recognizing not only their excellence on this particular project, but their daily efforts to train and provide assistance to limited jurisdiction judges across the state.”

“As you know, Mark and Paul not only wrote about the new rules in the Arizona Attorney, but they lead a committee with a wide representation of justice stakeholders through lengthy process to rewrite the rules. It was an extraordinary effort that produced more accessible and understandable rules, especially for the many pro se litigants appearing before justice courts.”

Jeff Schrade, that handsome devil, graced the April 2001 cover of Arizona Attorney Magazine.

The Court’s recognition is well deserved, but that January article is just the tip of the service iceberg for Paul and Mark. They have helped the state and the Court in countless ways. And here at the magazine, their involvement has gone beyond writing (as Mark also did in our March 2013 issue). They are both go-to people whom I count on for advice and insight on so many topics. Every editor I know has a kitchen cabinet, and I’m pleased to say these two men are reliable and wise members of mine.

A side note: Jeff Schrade, too, has been a part of the Arizona Attorney family, in a very personal way. Way back in our April 2001 issue, when I had helmed the magazine for just three months, we wanted to provide a great visual to front our deep coverage of lawyer marketing and advertising.

Always a great sport, Jeff donned a sandwich board and stood on First Avenue in downtown Phoenix for at least an hour while the photographer, art director and I all helped shepherd passersby around the generous photo-model.

(There were other heroes that day: Two Bar colleagues—Bonnie Lebeck and Natalie Burns— also assisted, by striding past quickly, over and over—backwards!—to provide the necessary blur.)

Adding to the surreality experienced by commuters that morning was the fact that the sandwich board was blank; we would add the desired words to the image of the board at a later design stage. What a mensch!

Jeff recently told me, “For the record, I still proudly display the special cover you made for me welcoming the birth of my son Nathan (who is 12 now) back in 2001!”

We like the cover quite a bit ourselves!

Congratulations again to Mark Meltzer and Paul Julien. Here’s looking to years more collaboration!

Follow @azatty

 

Chief Justice Berch Urges More Court Advocates for Foster Children via @CASAofArizona

Arizona Chief Justice Rebecca White Berch speaks to the need for more special advocates for children, April 3, 2013. (Mary K. Reinhart/Arizona Republic)

Just a short note this Monday morning to remind all that April is Child Abuse Prevention Month. To honor the justice system’s commitment to some of our most vulnerable, Chief Justice Berch held a press conference on the steps of the Arizona Supreme Court.

The April 3 event shone a spotlight on the state’s CASA program: Court Appointed Special Advocates. As the organization describes itself:

“CASA stands for Court Appointed Special Advocates. CASA volunteers are everyday people appointed by a judge to speak up for abused and neglected children in court. In Arizona, there are 15 county CASA programs administered by the CASA of Arizona office which is a program of the Dependent Children’s Services Division of the Arizona Supreme Court Administrative Office of the Courts. CASA of Arizona and its volunteers have been advocating for abused and neglected children in Arizona for over 25 years.”

As the Chief Justice reiterated CASA’s call for help: “Don’t wait. Advocate.”

You should more about the organization—and sign up to help—at their website.

Arizona Court of Appeals Judge Maurice Portley speaks at press conference, Phoenix, Ariz., April 3, 2013 (Mary K. Reinhart/Arizona Republic)

You also should read the Arizona Republic article by Mary K. Reinhart on the presser and the need for more advocates.

Here is the opening of Mary’s article:

“Arizona has never had enough volunteers to work with children in foster care, and judges this week made an appeal for more court-appointed special advocates.”

“The volunteers, or CASAs, act as advisers to juvenile-court judges who oversee the cases of children removed from their homes because of suspected abuse or neglect. Each volunteer is paired with a foster child, and often becomes the one, consistent adult during a child’s time in care. They represent the child in court and make recommendations to judges about their best interests.”

“There are about 850 CASAs for more than 14,300 foster children.”

Follow @azatty

 

VDay Monologues To Counter Violence Against Women, Girls at @Space55

The May issue of Arizona Attorney will include an insightful Last Word column by a lawyer who wanted to talk about a dreadful topic: the continued high levels of violence against women and girls in Arizona, particularly on the Indian reservations. Attorney Don Bayles explores the challenges inherent in seeking legal justice when courts and court officers are hundreds of miles away. He praises the work done by those in the system, but he says the Rule of Law will mean little until those many obstacles are eliminated.

As I worked with Don on his column, I also was thinking about an upcoming event that takes on such violence in a creative way. And I am privileged to be a part of it.

On this Saturday, April 6, I will be one of a small group of performers who will deliver monologues in honor of VDay, a global movement to stop violence against women and girls. As part of VDay 2013, the Arizona chapter of the National Asian Pacific American Women’s Forum is sponsoring a performance of “A Memory, A Monologue, A Rant & A Prayer” on April 6, 2013, at 2:00 and 7:00 p.m.

This collection of monologues will be performed by NAPAWF members and allies (like me) and will occur at Space 55, 636 E. Pierce St., Phoenix 85004 (map below). Tickets are $15, and all proceeds will go to Arizona South Asians for Safe Families.

Tickets are available online here. For more information, click here.

You can Like the event on Facebook too.

All of the monologues are compelling and were written not by the performers but by other great (and sometimes famous) writers. Among the pieces is one written by Eve Ensler of The Vagina Monologues fame.

The piece I will deliver, I’m pleased to say, was written by one of my favorite writers—journalist Nicholas Kristof of The New York Times. The piece is about his experience interviewing a young girl who was imprisoned as a prostitute in Cambodia.

The variety of content is amazing. I can pretty much guarantee it will make you laugh as often as it induces sadness. And the hope is, it also will induce an impulse toward change. (I’m proud to add that my whole family—my wife and our two daughters—is involved. And our older daughter Willa is directing!)

Please consider buying a ticket, stopping by, and inviting others.

Here is a map:

View Larger Map

Follow @azatty

 

Pioneer Hotel Fire Case Covered by @60Minutes

The Pioneer Hotel burned in downtown Tucson, December 1970.

[Note: A previous version of this story indicated that the Pima County Attorney's Office is housed in the structure that formerly was the site of the Pioneer Hotel. We were misinformed; the PCAO is across the steet from that site. We apologize for the error.] 

Last evening, the TV news magazine 60 Minutes screened a compelling news story about the Hotel Pioneer fire case, from 1970.

The Tucson fire killed 28 guests, and 16-year-old Louis Taylor was arrested before the fire was extinguished. The black teenager was convicted by an all-white jury.

The news program (screen shots below) was peppered with commentary by Taylor’s Arizona lawyer, Ed Novak, a Polsinelli partner (and former President of the State Bar of Arizona). As the story says, Novak “is now leading Louis Taylor’s defense team, which is made up of volunteer lawyers, students and law professors from the Arizona Justice Project.” That team has sought a new trial for Taylor.

Novak and the team reviewed all the evidence, and conducted depositions of individuals such as the original fire investigator, Cy Holmes. That work was followed by recent findings that the cause of the fire was undetermined; that meant arson was just one of a number of possibilities.

“The last time I checked,” Novak said, “we don’t convict people on a ‘possibility.’”

In the story, Steve Kroft reported that 60 Minutes had sought an interview with Pima County Attorney Barbara LaWall, to no avail. So Steve approached her on a Tucson street. That interview is captured in the broadcast.

But, as the story indicated, a new trial will likely never occur. Taylor has accepted a deal that gave him release from prison—where he has spent two-thirds of his life—but through which he must declare no contest to the charges.

You should read the script, and view the story, here.

Later this week, Taylor’s lawyers will have a press conference on the case’s outcome. I’ll report their statements.

Here are some screen shots from the 60 Minutes program:

This slideshow requires JavaScript.

Follow @azatty

 

Jodi Arias Trial and Arizona Noteworthy for Juror Questions

Yesterday, I was looking for something on the CNN website (good luck) when I came across their recently omnipresent viewer-discretion warning about the Jodi Arias trial. Here’s a screen-grab (the big honking arrow is mine, though the station bosses might decide they like it).

CNN’s Jodi Arias trial viewer-discretion warning

I’ve watched a bit of the Arias trial, but not much. Given the questions I’ve received from friends and colleagues around the country (usually beginning, “Let me get this straight …”), it’s helpful for me to know something about the case facts.

Long after those facts are adjudicated, though, the complex legal issues will be debated (probably with no viewer-discretion warning required). And even beyond that, we’ll assess the effectiveness of juror questions.

Yes, there have been a few tawdry inquiries from those colleagues around the country. But more often, I have been surprised at the number of them who have asked about juror questions: “You allow that in Arizona?”

Arizona Attorney Magazine cover, February 2001

Indeed we do, as well as note-taking and some other semi-unique elements.

The number of juror questions posed in this trial may be remarkable, but the fact that they may inquire at all has been a part of Arizona jurisprudence for a long time now.

For some background on that, you should read “O Pioneer,” our 2001 article about then-Judge Michael Dann. He and others were leaders in initiatives to transform the jury process. Other states have participated, but Arizona was (and is) a leader.

Posted on their website, the Arizona Supreme Court has the remarkable original report (from 1994 and 1998) called “The Power of 12.” It’s in two parts, here and here. It was drafted by the Court’s Committee on the More Effective Use of Juries.

For more recent coverage of courts that permit juror questions, go here. As the story opens:

“A small number of states have changed their laws and court rules to allow jurors to ask witnesses questions, either orally or in writing through the judge. Written questions submitted in advanced allow attorneys for both sides to make objections based either on the ground they would violate the rules governing the admission of evidence or would result in prejudice against their clients.”

Michael Dann, former Judge on the Superior Court for Maricopa County

“The states that expressly encourage judges to allow jurors to question witnesses are Arizona, Arkansas, Florida, Indiana, Iowa, Kentucky, Nevada and North Carolina. Out of these jurisdictions, Arizona, Florida, and Kentucky require that judges allow jurors to ask written questions. The respective highest state courts of Indiana and Kentucky have ruled jurors have a right to ask questions of witnesses.”

But changes like this can lead to unpredictable results. You should read this Washington Post story from 2007, titled “Jurors’ Queries Yield Insights—and Laughs,” which opens with a humorous anecdote showing that jurors may focus on areas that counsel may find irrelevant:

“Former New York Times reporter Judith Miller was on the witness stand yesterday and a juror wanted to know why she had decided to go to jail for 85 days before agreeing to testify about her conversations with I. Lewis ‘Scooter’ Libby.”

“Another juror had a different kind of question for Miller about her notes from a conversation with Libby: Was storing notebooks in a large shopping bag under her desk her standard method for saving her notes?”

“So the jurors asked.”

For trial lawyer readers, have you found juror questions to be a feature that improves the process? Have you found queries annoying? Or have they given you an opportunity to clarify issues that may be blocking a jury decision?

Write to me at arizona.attorney@azbar.org.

Follow @azatty

 

Prop 207 Panel with @MayorStanton Tonight by @BloomingRock on Property Rights versus Downtown Neglect

Does Prop 207 protect or harm neighborhoods? It may depend on where you hang your hat.

This evening, another panel that has had a lot of engagement will occur. The topic is the controversial Proposition 207 (which you can read here, at A.R.S. § 12-1134).

Titled “Diminution in value; just compensation,” the law has done more to protect property owners from a loss in value—or to doom neighborhoods to zero improvements, depending on your position—than almost any statute.

The panel discussion includes Phoenix Mayor Greg Stanton and runs from 6 to 8 p.m. It is sponsored by Women Design Arizona and Blooming Rock Development. I covered a previous panel of theirs on water use and conservation, in their “sustainable urbanism” series.

It will be held at the Downtown Phoenix Public Market. (I understand a fleet of food trucks will be available to increase the value of the parking lot and to meet our every culinary need.)

Over here at Arizona Attorney, we haven’t covered eminent domain and property issues like this since 2006. Kelo v. City of New London (remember Kelo?) changed the landscape, you could say, quite a bit. Shall we cover it again? What’s changed? (You can see our opening spread below.)

Here is more detail from the panel’s organizers. I hope to see you there. But I’ll also be tweeting with the hashtag: #Prop207Phx

“Join panelists of the March 20 Sustainable Communities Lecture Series in a discussion about the status of Proposition 207, enacted by Arizona voters in 2006, and its impact on property rights, neighborhood blight and safety, and historic preservation. Does Prop 207 really protect property owners or does it make it harder for municipalities to protect themselves from slumlords, criminals, and developers with little or no interest in neighborhood and community revitalization?

Panel:

• Mayor Greg Stanton, City of Phoenix
• Christina Sandefur, Staff Attorney at the Goldwater Institute
• Grady Gammage, Jr., attorney, real estate developer, author, Morrison Institute for Public Policy

More information (and Join-ability) is on Facebook.

Tickets are $5 in advance (supposedly by March 19), and $10 at the door. Buy them here, if you’re still able.

Follow @azatty

 

50th Anniversary of Landmark Case Gideon v. Wainwright

Clarence Earl Gideon

March 18, 1963, was the date on which the United States Supreme Court ruled in favor of a petitioner who was also a Florida convict. And through that ruling in Gideon v. Wainwright, Clarence Gideon initiated a sea change in American law.

Monday, of course, will be the 50th anniversary of the ruling, and we still marvel at the change he wrought: It embedded the legal cornerstone that a criminal defendant who cannot afford to hire a lawyer must be provided with an attorney at no cost. It could be argued that no single decision has more affected the ability of defendants to achieve fairness in legal proceedings.

So impressive was the result that it received a shout-out at a Phoenix event yesterday. I will write later about the continued success of the annual Learned Hand Awards luncheon. But at Wednesday’s event, Arizona Justice Scott Bales, emcee for the festivities, took a moment to mark the Gideon anniversary and to praise public defenders and all those who represent the indigent. Exactly right.

In honor of the anniversary, the American Bar Association Section of Litigation has created a resource page exploring Gideon’s legacy. Included on the page is a reproduction of the actual hand-written petition that Clarence Gideon drafted in a Florida prison. It is worth a read.

Also included is a video capturing a January panel discussion regarding Gideon. It is quite good, and I have posted it below. But among its gems is its replaying a 1964 CBS News piece on Gideon, the man and the case. It begins at 2:40 and runs to 13:03, and you should watch every minute.

Is your agency, firm or organization recognizing Gideon in any way on the 50th anniversary? Let me know.

Follow @azatty

 

Sandra Day O’Connor Book No-Tell All Tome

Justice Sandra Day O’Connor

By now, you’ve heard about a new book being launched, written by Justice Sandra Day O’Connor. It’s titled Out of Order: Stories from the History of the Supreme Court.

Happy Change of Venue Friday. For those of you (OK, me) hoping for the excavation of a few skeletons from the Court’s many closets, we’re likely to be disappointed. Here’s how an ABA Journal news story opens:

“Readers hoping for juicy revelations about controversial Supreme Court cases or ‘tell all’ insights won’t find them in Sandra Day O’Connor’s latest book.”

“But those looking for a ‘succinct, snappy account’ of the Supreme Court’s history should pick up the latest book by the retired justice, the New York Times reports. The Christian Science Monitor also has a review of the book, Out of Order: Stories from the History of the Supreme Court.”

(The whole story is here.)

Succinct and snappy are grand, just grand. But throw us a bone. I’m not expecting garish displays or jaw-dropping pronouncements. But something. Anything.

• Does Justice Scalia slurp his soup?
• Does Justice Kennedy irritate other Justices by earmarking the pages of books? (And is that really why Justice Souter retired?)
• Does Justice Ginsberg sneak extra Jell-O in the Court’s dining room?
• Does Chief Justice Roberts park badly, causing his next-door parker to put nasty notes on his windshield, and maybe, just maybe, to dissent more often as retribution?

You see where I’m going here. We want a little insight. But I suppose I’ll have to wait for a less courteous member of the Court to retire for that enticing volume to appear.

That said, I too will likely read the book. (Or, as the Justices stoutly declare, “I join.”) And if I know anything about Justice O’Connor, I’ll learn quite a bit in the process.

And if you want to buy what looks like a great book, it is available here.

Have a great weekend.

Follow @azatty

 

Symposium at @ASUCollegeofLaw To Address Criminal Justice Challenges

Today, some news from a noteworthy journal at the ASU College of Law:

“On March 1, join the Law Journal for Social Justice for a daylong symposium featuring attorneys, judges, community advocates, and legal scholars as we examine how to transform an inherently unfair criminal justice system into one that values fairness and efficiency.”

“Featured speaker Paul Charlton, former U.S. Attorney for the District of Arizona, leads off the day with a discussion about ethics and sentencing reform. Other panel topics include vulnerable populations in the criminal justice system, the mental health crisis within the criminal justice system and ways to reform the system in a more fair and efficient way.”

More information on speakers, the agenda and a link to register are here.

And be sure to follow the journal on Facebook here.

Follow @azatty