Criminal Sentencing


Bills of mortality preceded modern death certificates, and they suffer from similar challenges.

Bills of mortality preceded modern death certificates, and they suffer from similar challenges.

Years ago, in a job-related field trip, I attended a tour of the medical examiner’s facility in Clark County, Nevada. As the chief office of the pathologist for Las Vegas and its environs, it was a busy place.

Like most of the living, I had never given much thought to the multiple tasks that must be performed on the dead—especially if they died under suspicious circumstances or not under the care of a doctor.

As I learned that day, the task of the M.E. is often a complex one. And nothing is more complex than the element that is often the sole source of interest for others: affixing the single cause of death.

I was reminded of that challenge during a State Bar of Arizona CLE a few weeks ago. There, a pro-con was staged on the legalization of marijuana. Though the wider acceptance of medical marijuana may suggest we’re approaching legalization, the topic is still a thorny one, as evidenced by the vehement dialogue at the CLE.

Sure as no-rain in Arizona, though, a recent death was raised, one that may suggest more questions than answers.

As background, we recall the oft-repeated position of marijuana advocates that not one death has ever been attributed to pot—and compare that with the millions killed by cigarettes and alcohol.

It’s a compelling statistic, one that continues to irk enforcement advocates. And that may be why we have heard advocates mention a Colorado death a lot the past few weeks.

The story (reported here by the Denver Post) is about a young man who jumped to his death after eating marijuana-infused cookies. Here’s the story lede:

“A college student visiting Denver jumped to his death from a hotel balcony after eating marijuana-infused cookies, according to a coroner’s report that marks the first time authorities have publicly linked a death to marijuana since legal sales of recreational cannabis began in Colorado.”

“Levy Thamba, a 19-year-old student at Northwest College in Powell, Wyo., died last month at a Holiday Inn in northeast Denver. On Wednesday, the Denver coroner released a report concluding that Thamba’s death was caused by ‘multiple injuries due to a fall from height.’”

“The coroner also listed ‘marijuana intoxication’ from cannabis-infused cookies as a significant condition contributing to the death. The report classifies the death as an accident.”

At the Bar CLE, Maricopa County Attorney Bill Montgomery alluded to the death, saying that it punches a hole in his opponent’s argument.

But does it?

An article this month in the New Yorker would suggest any coroner’s conclusion is a more nuanced one. In “Final Forms: What death certificates can tell us, and what they can’t,” Kathryn Schulz explores the history of one of civil society’s most ambiguous documents (you can read some of her great article here; sorry, but a subscription wall prevents you from reading the whole thing). And resting your argument on such a piece of paper may not tell the whole story.

Huckleberry Finn had many skills, but determining causes of death was not one of them.

Huckleberry Finn had many skills, but determining causes of death was not one of them.

Schulz opens by describing the meandering history of “bills of mortality” and the coroners who wielded them. The shift from the publicly published bills to the modern-day death certificates has been accompanied by increasing professionalism—but they still may not be the scientifically accurate document the certainty-loving may hope for.

Along the way, Schulz notes, coroners have been known to alter a cause of death to protect reputations or to soften the blow felt by grieving families of means. But if death certificates may be used to protect the dead, could they also be used politically to throw aspersions on the dead? Sure, but that’s not even the biggest challenge.

The toughest nut to crack for M.E.s may reside in the question posed by us lay-people: “Finally, what was the one thing that killed him?

As Schulz writes, “The why of death remains elusive—practically, philosophically, above all emotionally. And, the more extensively we attempt to document it through death certificates, the stranger and more troubled that project comes to seem.”

So if the accuracy of death certificates faces numerous challenges—as Schulz shows—a primary one “is how we decide what counts as a good answer.”

In that exploration, I was extremely pleased to see her turn to Mark Twain, specifically a passage from Huckleberry Finn. It involves a conversation between the stubborn Huck and the Wilks sisters, who are having none of his malarkey.

“One afternoon,” writes Schulz, “while chatting with the Wilks sisters, Huck spontaneously invents a new disease—a form of mumps so virulent that, he claims, a neighbor is in danger of dying from it.”

One sister objects, but Hucks doubles down, saying it can kill the neighbor because it’s “mixed up with other things,” from “yaller janders” to “brain fever.”

Susan Wilks—whom I hope inspires M.E.s everywhere—will have none of it, reminding Huck that it is therefore not the mumps that may cause the neighbor’s demise:

“A body might stump his toe, and take pison, and fall down the well, and break his neck, and bust his brains out, and somebody come along and ask what killed him, and some numskull up and say, ‘Why, he stumped his toe.’ Would ther’ be any sense in that? No. And ther’ ain’t no sense in this, nuther.”

I leave you with Schulz’s point: “This is precisely the problem posed by death certificates; when filling them out, how far back should we chase the causal chain?

That chain could, I suppose, end with a cookie. But I suspect Susan Wilks would arch an eyebrow at that supposition.

prison_green haven NYYou may not have known that a Prison Awareness Club was a thing. But in a nation apparently committed to that growth industry, it only makes good sense that college students might engage on the topic of corrections.

This Friday, March 28, the third annual Prison Education Conference will be staged at ASU.

The all-day event is sponsored by the Department of English, the School of Social Transformation, and the College of Liberal Arts and Sciences. The free event (open to the public) will include speakers, discussion panels and the screening of what looks to be a compelling film.

Writer Sought

I may be able to attend, but I currently have a conflict. If you are a law student, student of the law (most generally defined), or a lawyer—and you are NOT one of the event organizers—I invite you to contact me to discuss a guest blog post. It might cover the entire event, or perhaps be just a review of the film Zero Percent. Write to me at arizona.attorney@azbar.org.

Keynote Speaker

The conference includes a keynote by author Marshall Frank. As a news story describes his work:

“This year’s conference features keynote speaker Marshall Frank, a retired police captain from Miami, Fla., who led more than a thousand homicide investigations during his career and has since written hundreds of op-eds and articles about the state of America’s justice system.”

“In his most recent book ‘Criminal InJustice in America,’ Frank explores inequities of the prison system, “a multi-billion-dollar industry, which would collapse if there was a sudden downturn in inmate residency.” Perhaps that’s why the United States has 5 percent of the world’s population, but a staggering 25 percent of its prisoners. Critics have hailed ‘Criminal InJustice’ as ‘challenging,’ ‘thought-provoking’ and “daring.’”

Read the complete ASU News story here.

Panels Cover Prison Education

The complete agenda is here.

Among the speakers will be a representative from the Arizona Department of Corrections, and his compatriot from the New Mexico prison system. The organizers also feature the insights of educators from three Arizona prison complexes.

A second keynote will be Sean Pica, head of Hudson Link for Higher Education in Prison. And it is the Hudson connection that may yield one of the day’s most enlightening aspects—a film.

Zero Percent Film To Screen

The film trailer for Zero Percent explains—a little—about the challenges faced by incarcerated individuals. Watch the trailer here.

More information about Hudson Link is here. And you can follow their posts on Facebook too.

The event location is the University Club on the ASU campus. A scalable map is here.

RSVP: peac.org@asu.edu

flier Prison Education Conference 2014_opt

indigent defense need-blind justice by Yarek Waszul

Illustration by Yarek Waszul

Last month, I reported that attorney Larry Hammond and others are seeking to establish an Arizona indigent defense commission. The unfilled need is dire, he said, and growing worse. He asked the State Bar to step up and create a body that will study and propose alternatives. (The Bar is considering it.)

So timely, a New York Times article this Sunday explored two states’ responses to the crushing problem. Here is how Adam Liptak opens his piece on Need-Blind Justice:

“Fifty years ago, in Gideon v. Wainwright, the Supreme Court ruled that poor people accused of serious crimes were entitled to lawyers paid for by the government. But the court did not say how the lawyers should be chosen, how much they should be paid or how to make sure they defended their clients with vigor and care.”

“This created a simple problem and a complicated one. The simple one is that many appointed lawyers are not paid enough to allow them to do their jobs. The solution to that problem is money.”

“The complicated problem is that the Gideon decision created attorney–client relationships barely worthy of the name, between lawyers with conflicting incentives and clients without choices. Now a judge in Washington State and a county in Texas are trying to address that deeper problem in ways that have never been tried in the United States.”

“Their proposed solutions reflect competing schools of legal thought. The approach in Washington State is a top-down exercise of federal power, pushing lawyers to make sure they meet with their clients, tell them their rights, investigate their cases and represent them zealously in plea negotiations and at trial.”

“The one in Comal County, Tex., is a bottom-up appeal to the marketplace. Defendants there will soon be able to use government money to choose their lawyers in much the same way that parents in some parts of the country use government vouchers to pay for grade school.”

“The county calls it ‘client choice.’ Another name: Gideon vouchers.”

Read Liptak’s whole story here.

It was Justice Louis Brandeis who mused that states could serve as laboratories for democracy, where they might try “novel social and economic experiments without risk to the rest of the country.” It seems that Washington and Texas are doing just that, all in service to a problem affecting countless residents.

Two questions arise:

  1. Which approach, if either, offers the greatest likelihood of success?
  2. Where is Arizona’s approach? Will it be one of those two, or an entirely different strategy that a new commission may devise?

In Arizona Attorney Magazine, we’d like to cover the developing conversation. So what do you think?

Law for Veterans website screen shotLast Friday, as folks were clearing out of work and looking forward to a holiday weekend, staffers at the Arizona Foundation for Legal Services & Education were putting the final touches on a new website—one dedicated to aiding veterans and their families.

LawforVeterans.org is a creation of the Arizona Supreme Court, in cooperation with the AZFLS&E and the Military Legal Assistance Committee of the State Bar of Arizona.

The site aims to be a “one-stop clearinghouse for access to legal and other important veteran benefit information,” providing legal information, articles, resources and forms.

The Court explains that the site features 10 specialty subject areas “ranging from identity theft to employment law. There are sections with helpful Q&A topics as well as a place to ask legal questions, find a lawyer, or locate other resources veterans might need.”

The site “will be the public face of a broader support network.” The Court announced that more than 270 volunteer legal professionals will “respond to questions and help match veterans with the resources they need.”

Hon. Rebecca White Berch

Hon. Rebecca White Berch

Chief Justice Rebecca White Berch says, “Veterans Day 2013 marks the initial public launch of the site, but we realize the site itself is a platform upon which we will build and add content, based on the needs and input of veterans and service providers that stand ready to assist them.”

Polsinelli attorney Kris Carlson is cheered by the website’s creation. He is a former Green Beret and co-chair of the Military/Veterans Group of the American Health Lawyers Association Behavioral Task Force. He views the site as a great resource.

“‘Law for Veterans’ is absolutely fantastic,” Carlson says. “This resource was badly needed.  Transitioning from the military into civilian life can be difficult. Behaviors that kept the service member alive during time of war are not easily forgotten, and some can leave veterans at a disadvantage when re-integrating into civilian life.”

Carlson continues, “The site’s comprehensive approach can provide assistance to Arizona’s men and women veterans in many critical areas as they struggle to leave the war behind them.”

Many veterans struggle with reintegration into civilian life, which can be difficult. As a result, some may become involved in the criminal justice system; claims denials; insurance problems; family law issues; or physical, mental or substance abuse challenges.

Kris Carlson, Polsinelli

Kris Carlson, Polsinelli

AZFLS&E CEO Kevin Ruegg says, “The Foundation is thrilled to have the Supreme Court entrust us with this project and very grateful for the partnership with the Bar’s Military Legal Assistance Committee. We hope to accomplish two things: furthering our mission of promoting access to justice for all Arizonans, and assuring our veterans know that we understand that our justice system would not be here without their fight for this country’s freedoms.”

Staffers at the Foundation who led the rollout effort included Public Legal Information Manager Kim Bernhart and CTO Al Flores, along with Lara Slifko and Dan Hall. Bernhart points to this effort as another in a successful line of sites launched by the Foundation, including Law for Seniors and Law for Kids.

Brigadier General Gregg Maxon (ret.) is a special adviser to the Administrative Office of the Courts, where he assists jurisdictions in their efforts to create veterans courts. The Supreme Court said he was “a key advocate in the planning and development” of the new website.

Among the data he gathered:

  • 2.4 million men and women served in Iraq and Afghanistan.
  • 1.44 million are now eligible for V.A. health care.
  • 774,000 have obtained V.A. health care.
  • Of those receiving treatment, 52 percent are diagnosed with mental disorders such as PTSD, depression and substance abuse.

“A unified treatment and rehabilitation approach brings better results,” says General Maxon. “Through partnerships with the Department of Veterans Affairs and local, state or national non-profits and community-based organizations, we can honor our veterans with the resources they deserve.”

Vice Chief Justice Scott Bales adds, “Courts and the legal community are recognizing that we can better serve certain populations by tailoring website content and court services to meet their needs. Our veterans deserve this help. We don’t want them hurting, alone or in trouble with nowhere to turn.”

The Court encourages businesses, government agencies, chambers of commerce, associations, and non-profits to add a link to www.LawForVeterans.org.

John Jay College of Criminal Justice logoIn case you missed it, as they say: Reporter Michael Kiefer opened a four-part series yesterday about the prevalence (or its opposite) of prosecutorial misconduct.

That is bound to be a controversial issue, but I’m sure many will read this week’s Arizona Republic coverage closely.

His first piece is here.

That is certainly relevant to my legal audience, even if the topic will rankle some (if you want to see how much, just scroll down past his article to the reader comments beneath. Sheesh!). But besides the article’s substantive value, I also was intrigued by an acknowledgment included with it:

“This series was researched and written as part of a fellowship with The Guggenheim Foundation and the John Jay College of Criminal Justice in New York City.”

Arizona Attorney Magazine January 2012 cover criminal sentencingHey, I know the John Jay College—because I also had the opportunity to be named a Guggenheim Fellow a few years ago. As such, I traveled to New York for a targeted symposium on crime in America.

As a working writer, it is quite a luxury to have a trip dedicated to learning—especially when your expenses are paid. In an annual conference, the Guggenheim Foundation brings a parade of national experts before a group of 25 or so journalists to help dissect the criminal justice system. (I got to attend another Guggenheim workshop, in Reno, on incarceration and release issues, in 2008).

The repayment you make to that cutting-edge learning is that you commit to coverage of a related topic. My coverage—on criminal sentencing and the political possibilities for change—appeared in the January 2012 Arizona Attorney Magazine.

Kiefer’s a great reporter, and I can picture the Manhattan room he sat in; I wonder if it snowed during his East Coast trip too. I look forward to what he can accomplish this week (with the Gannett machine behind him!). Write to me at arizona.attorney@azbar.org and let me know what you think of the coverage.

Guggenheim acknowledgment

In the January 2012 issue, I thanked the John Jay College and Guggenheim folks for a terrific learning experience.

Justice at Stake logoHow do we know the weather is improving in Arizona? Our in-boxes are jammed with invitations to events—some even held outdoors!

Over the next few days, I’ll share a few event details to be sure you know as much as I do (what a low bar that is!).

Today, I mention three events, all occurring late this week. Get your curiosity and your business cards ready to attend:

  • Arizona Advocacy Network/Justice at Stake event. Thursday, Oct. 17, 5:30 pm. REGISTER HERE. Here is the detail:

“Arizona Advocacy Network is continuing our work to promote Fair Courts and Diversity on the Bench. We’re excited to invite you to our launch of a new, sustained project in collaboration with Justice at Stake, local, state and national organizations on October 17. Tim Hogan (Arizona Center for Law in the Public Interest), Liz Fujii (Justice at Stake) and Eric Lesh (Lambda Legal) will each speak briefly on court cases that impact our lives, equality and justice. Guests are encouraged to make this a discussion with our three panelists. We have lots of food and drink and the social is free. You just need to reserve your place with rooftop access at the Clarendon limited to 100 guests.

“Americans are engaged in an important and vigorous debate over the best way to stem gun violence, but the heated argument begs the question: What do the numbers show? Stanford Law School Professor John Donohue III, one of the world’s leading empirical legal researchers, will give a public lecture on the subject at The University of Arizona James E. Rogers College of Law.”

  • State Bar CLE: “The Arizona Justice Project: Volunteer Lawyers on the Long Hard Road to Justice.” Friday, Oct. 18, 9 a.m. Available live, Tucson simulcast or as a webcast. Here is the detail:

AZ justice-project logo“This session will showcase the work of the Arizona Justice Project, a non-profit organization dedicated to examining claims of innocence and manifest injustice, and providing legal representation for inmates believed to have been failed by the criminal justice system. The seminar will include a discussion of current advancements in forensic science as well as an overview of post-conviction relief procedures. A primary focus of the program will be to highlight the importance of and opportunities for pro bono service. Faculty will discuss actual cases involving the work of the Project to include the Drayton Witt, Bill Macumber and Louis Taylor cases.

Here’s hoping we get to meet at one or more of these events.

Herman Wallace in 2008 (photo: The Innocence Project)

Herman Wallace in 2008 (photo: The Innocence Project)

Herman Wallace, whom I have written about a few times, passed away last week. His death followed just days after he had been released from in a Louisiana prison.

As the ABA Journal summarized the varied news stories:

“An inmate held in solitary confinement for 41 years for the murder of a Louisiana prison guard has died just a few days after he was released from prison because of a federal judge’s order.”

“The New York Times reports that the inmate, Herman Wallace, died Friday morning from liver cancer at the age of 71, while the New Orleans Times-Picayune says Wallace died late Thursday. He had maintained his innocence in the murder until he died.”

“Wallace was a member of the Black Panthers and was in prison for armed robbery when he and two others were convicted in the prison guard’s 1972 slaying. The group was known as the Angola Three, based on the site of the prison. A lawyer for Wallace, George Kendall, told the Times that the conviction was based on shoddy evidence and alleged that the convicted men were kept in solitary because prison officials were worried they would organize the prison for the Panthers.”

Hermans House movie poster

Herman’s House film poster

“Wallace’s lawyers claim he was convicted based on accounts by witnesses who were given incentives to testify, but the deals weren’t disclosed until decades later.”

“U.S. District Chief Judge Brian Jackson ruled on Tuesday that Wallace’s habeas petition should be granted because of systematic exclusion of women from the Louisiana grand jury that returned the indictment. Wallace was re-indicted on Thursday, the stories say.”

I first came across Wallace via a film focused on solitary confinement; I reviewed the film, Herman’s House, which I found compelling on a number of levels.

Wallace’s death was covered by multiple news outlets, both here and abroad.

Amnesty International issued a statement on Wallace’s death here, and previously covered the case here.

A tough and sometimes controversial job: The Jury, by John Morgan painted in 1861).

A tough and sometimes controversial job: The Jury, by John Morgan (painted in 1861).

Juries simply fascinate us—like an uncle who is typically wise but occasionally demented. All in all, though, he’s the one we go to when we need advice.

Recently, a slew of material has flooded my way regarding juries, good and bad. And I could use your help.

I’ve been collaborating with an attorney on an article about cameras in the courtroom, and how they may affect jurors and other participants. We are covering a lot of ground, but it still would be nice to land on an insightful and local angle that illuminates the topic in new ways.

What do you think of cameras in the courtroom? And more specifically, what angle or hook would lead you to read a story that has percolated nationwide for decades?

Meanwhile, a colleague shared a dialogue he had heard regarding state laws that prohibit jurors from making money (from books or interviews) after a trial. The question arose during Florida’s prosecution of George Zimmerman in Trayvon Martin’s death. But after sitting through months of an Arizona trial of Jodi Arias, we wonder about the same thing here.

We are all accustomed to laws denying convicted people the opportunity to profit from their own stories. But restrictions on jurors are less often discussed; usually they come to light after major prosecutions, such as those against O. J. Simpson or the Menendez brothers. A recent story details what a Florida legislator proposed in the panhandle state. The law:

“would make it a third-degree felony for jurors to sell their stories within 270 days of serving on a jury. State Rep. Scott Randolph, D-Orlando, said the law would also apply to media organizations who try to pay jurors for their stories. It would not prohibit jurors from speaking freely without compensation or payment.”

The news squib is here. So under the law jurors would be free to speak with the trial’s lawyers, but could not sell their stories. What do you think?

Judge Sherry Stephens presided over the Jodi Arias trial, which involved issues of juror speech and cameras in the courtroom. Here, she urges the jury to continue deliberating after the jury delivered a message that they were deadlocked on a penalty for Arias, May 22, 2013. (AP Photo/The Arizona Republic, Rob Schumacher, Pool)

Judge Sherry Stephens presided over the Jodi Arias trial, which involved issues of juror speech and cameras in the courtroom. Here, she urges the jury to continue deliberating after the jury delivered a message that they were deadlocked on a penalty for Arias, May 22, 2013. (AP Photo/The Arizona Republic, Rob Schumacher, Pool)

Meantime, you may recall the story of the judge who put a gag order on jury members, and it affected their speech, to anyone, whether or not for pay. The article was from way back in 1998, ancient history. But I do not know if the unique order, which was upheld by the Fifth Circuit, was ever overturned.

It is a curious idea, the one where judges feel the need to protect the nebulous “judicial system,” even if it infringes on First Amendment rights. How many jurors expect that a do-not-talk order will continue for days, months and years after a trial is complete?

(A more rare instance—in which a juror is retained as a trial consultant in a retrial of the original case—is discussed here. Also examined is what’s known as the Juror Integrity Act.)

Another article from the early 2000’s explains how a gag order was enforced until after the appeals. And it overtly affected both the media and the lawyers.

Here is a nice summary of the law on the topic of juror speech.

Both of these topics—cameras in the courtroom and juror speech—implicate substantial constitutional issues. When the right to free speech runs hard against the right to a fair trial, the second should win. But the facts may not be so bald, and judges and legislators must craft solutions that aid both.

Do those topics interest you? If so, what magazine story approach would cause you to say, “Wow. That’s surprising”?

Flip off: All (protected) speech may not be for everyone.

Flip off: All (protected) speech may not be for everyone.

Where does protected speech end and obstruction of justice begin?

That has been on my mind since the 1980s, when I would regularly drive the many hundreds of miles of the New York State Thruway system.

It was not uncommon then (and probably the same today) that you would see State Trooper vehicles parked on a grassy berm, with a radar gun trained on oncoming traffic.

If you were fortunate enough, that radar gun was pointed the other way, aimed toward the opposite lane of vehicles. And so you, the lucky, were presented with a question: Should you flash your high-beams at the cars headed toward you, warning them that a speed trap was around the next bend?

If conditions were right (i.e., no massive curves that made oncoming cars invisible), I almost always opted to flash my lights. (Judge how you may.)

Please don’t remind me that speed may contribute to accidents and worse; I’m aware of that. But on most modern freeways (even in the 1980s) engineered for substantial speeds, 55 mph was a drowsy punishment. It is simply too easy to drift above that limit. And the costs associated with a ticket (including insurance costs) were (and are) substantial.

Back then, it was very common for many drivers to use their own headlights in aid of oncoming drivers. Especially appreciative appeared to be the semi-truck drivers, who would flash their thanks back to you.

Early social media, I suppose you could call it.

Were the troopers pleased at our community communication? Probably not. But they appeared to know what the First Amendment meant.

More recently, some police officers have been responding to headlight behavior with anger and the heavy hand of the law. Here is a story about a man arrested for obstruction of justice for flashing his lights as a warning.

The story opens:

“Missouri resident Michael Elli wanted to let others on the road know to slow down because they were about to drive into a speed trap, so he did what many kindhearted souls do: He flashed his headlights as a warning.”

“Police didn’t take at all kindly to warnings of this 21st century Paul Revere. They flashed him a ticket of his very own for obstruction of justice. Prosecutors eventually dropped the case, but Mr. Elli has now filed a class action lawsuit against the city because he says that the city retaliates against drivers who exercise their right to free speech–and that the government is trying to prevent it because it doesn’t like the message.”

Maybe the arrest came because so few people will flash oncoming drivers these days. My own unscientific poll of colleagues found that a majority did not even know what the practice meant. So if people are unaware of the flash’s meaning, why would they participate?

So perhaps Mr. Elli is one of the few remaining in that helpful herd. Whereas in years past police would have had to cite hundreds of drivers for the practice (and so wouldn’t), they now see the civic activity rarely, and so feel empowered to smite it.

But how different is Mr. Elli’s behavior, really, than that of some mainstream news organizations?

Every day, the Tucson Sentinel updates its online page of “Radar Van Locations.” You can see a screen-shot below; it’s very detailed. I doubt police like that page, but they appear to understand that it is protected by the First Amendment. How is the activity of a sole driver any different?

Radar Van Locations Tucson Sentinel

“Radar Van Locations” via the online Tucson Sentinel.

Finally, here is an indication that communications attitudes may be changing—when it comes to flipping off a police officer.

“A police officer can’t pull you over and arrest you just because you gave him the finger, a federal appeals court declared Thursday. In a 14-page opinion, the U.S. Court of Appeals for the 2nd Circuit ruled that the ‘ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.’”

The man had been cited for “disorderly conduct.”

Call me old-school, but I must say activity like that is pretty distasteful. Police have a very difficult job, and it cannot always be fun being the professional authority figure. But the court’s reasoning may be sound.

It is interesting that the middle-finger incident occurred when the driver saw a police officer holding a radar gun. (And I chuckled at the fact that the charges were dismissed on “speedy trial grounds.” Get it?) That was the extent of their interaction, but radar may tend to have that effect on people; it just seems, I don’t know, unfair somehow (I know, that’s not a legal basis, but a court sitting in equity would get it!)

Would the police have cited the driver if he had flipped off an unmanned radar camera? (That must happen dozens of times every day.)

What do you think? Do people have a constitutional right to convey information to their fellows, as long as they do not otherwise interfere with police activities?

Utah Attorney General John Swallow

Utah Attorney General John Swallow

Recent developments have not been good for the Utah Attorney General, John Swallow. As a news story this month says:

“The U.S. Department of Justice Public Integrity Section is investigating Swallow, as are the Salt Lake County district attorney and the Davis County attorney, both related to his dealings with indicted and imprisoned Utah businessmen.”

And on July 3, the Utah House of Representatives made “an unprecedented move” by creating a special committee to investigate the elected official.

As the Deseret News reports, “A nine-member panel with subpoena power and the ability to interview witnesses now has the authority to launch an investigation into embattled Attorney General John Swallow.”

That panel needs a Special Counsel. That’s where you may come in.

Here is the opening language from the Utah Legislature’s RFP, indicating its search for the counsel has begun:

“Utah’s Office of Legislative Research and General Counsel has issued a Request For Proposals seeking an individual, a group of individuals, or a firm to provide legal services to a Special Investigative Committee, created by the Utah House of Representatives, to investigate and make findings in relation to allegations of misconduct made against Utah’s attorney general, John Swallow.”

Utah Office of Legislative Research and General CounselThe 22-page RFP may be viewed here.

The RFP response deadline is July 25.

Be sure to jump to the last attachment, which is a letter explaining the process. It is signed by John Fellows, general counsel for the Utah Legislature.

After the long RFP, his to-the-point letter is appreciated. Here is part of what Fellows says:

“As general counsel for the Legislature … I seek a person to collaborate with me in staffing and advising the committee chair and its members. I intend that the person hired will undertake significant responsibility for planning, supervising, and presenting the investigative work of the committee. Participation in, or assistance with, litigation may also be required—if necessary—to enforce and defend the actions of the Committee, the Utah House, or the Legislature.”

“Fundamentally, I am looking for someone who has experience in complex civil or criminal investigations and has experience marshaling and presenting evidence in a narrative fashion to a judge, jury, or committee. That person should have, or hire, a group of attorneys or support staff to help accomplish the assignment.”

“The person selected, and any support staff, should also have good political instincts and be able to work diplomatically with legislators.”

Interested? The official RFP contact is:

Thomas R. Vaughn

Associate General Counsel

Office of Legislative Research & General Counsel

Utah State Capitol Complex

House Building, Suite W210

P.O. Box 145210

Salt Lake City, Utah 84114-5210

Inquiries go to tomvaughn@le.utah.gov

I’ve got to add, based on the past few years in Arizona, I’m thinking there may be some good special counsel candidates here.

I base that on the number of comments sent my way from lawyers who were armchair-litigating the Andrew Thomas hearings. Many days, I would get suggestions from lawyers who had watched the previous day’s proceedings. They would recommend—to me—alternative strategies the prosecutor could adopt.

Always, I would recommend that the attorneys contact the prosecutor if they have an idea (I’m sure he would have loved that). Of course, Thomas was disbarred, so special counsel John Gleason must have been doing something right.

So here’s another high-level opportunity to get to the bottom of a brouhaha. Have at it. And if you get the job, please keep calling me (really!); I appreciate the insights.

Next Page »

Follow

Get every new post delivered to your Inbox.

Join 2,169 other followers