Retiring Arizona Prison Watch...

This site was originally started in July 2009 as an independent endeavor to monitor conditions in Arizona's criminal justice system, as well as offer some critical analysis of the prison industrial complex from a prison abolitionist/anarchist's perspective. It was begun in the aftermath of the death of Marcia Powell, a 48 year old AZ state prisoner who was left in an outdoor cage in the desert sun for over four hours while on a 10-minute suicide watch. That was at ASPC-Perryville, in Goodyear, AZ, in May 2009.

Marcia, a seriously mentally ill woman with a meth habit sentenced to the minimum mandatory 27 months in prison for prostitution was already deemed by society as disposable. She was therefore easily ignored by numerous prison officers as she pleaded for water and relief from the sun for four hours. She was ultimately found collapsed in her own feces, with second degree burns on her body, her organs failing, and her body exceeding the 108 degrees the thermometer would record. 16 officers and staff were disciplined for her death, but no one was ever prosecuted for her homicide. Her story is here.

Marcia's death and this blog compelled me to work for the next 5 1/2 years to document and challenge the prison industrial complex in AZ, most specifically as manifested in the Arizona Department of Corrections. I corresponded with over 1,000 prisoners in that time, as well as many of their loved ones, offering all what resources I could find for fighting the AZ DOC themselves - most regarding their health or matters of personal safety.

I also began to work with the survivors of prison violence, as I often heard from the loved ones of the dead, and learned their stories. During that time I memorialized the Ghosts of Jan Brewer - state prisoners under her regime who were lost to neglect, suicide or violence - across the city's sidewalks in large chalk murals. Some of that art is here.

In November 2014 I left Phoenix abruptly to care for my family. By early 2015 I was no longer keeping up this blog site, save occasional posts about a young prisoner in solitary confinement in Arpaio's jail, Jessie B.

I'm deeply grateful to the prisoners who educated, confided in, and encouraged me throughout the years I did this work. My life has been made all the more rich and meaningful by their engagement.

I've linked to some posts about advocating for state prisoner health and safety to the right, as well as other resources for families and friends. If you are in need of additional assistance fighting the prison industrial complex in Arizona - or if you care to offer some aid to the cause - please contact the Phoenix Anarchist Black Cross at PO Box 7241 / Tempe, AZ 85281.

until all are free -

MARGARET J PLEWS (June 1, 2015)


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Monday, December 30, 2013

Red Rock Ready: AZ prisoners soon to fill CCA prison in Eloy.

Interesting how deftly AZ DOC director Chuck Ryan managed to duck responsibility for these private prison contracts by saying he's just implementing policy - the AZ Legs wouldn't have ordered him to privatize anything if he told them it would be a bad idea, and I sure never heard him put up a fight. 

I also find it interesting that there's no mention of filling Red Rock with sex offenders, which is what he told me he was planning when I met with him just a couple of weeks ago. That isn't still some kind of secret from the Eloy community, I hope - though its an easy and relatively inexpensive population for private companies to manage. 

Given the absurd minimum mandatory sentences in Arizona, unless we do something drastically different then regardless of who we send to Red Rock, I'm sure this place will keep that prison full another 20 years, sad to say.

Dianne Post of the Maricopa County NAACP met with Director Ryan and his staff and I earlier this month to discuss why the violence is so out of control in his prisons and what he intends to do about it, by the way. I'll have more on that in another week or so; right now I'm just enjoying my family. 

So, blessings to all out there for a better year. Tell your legislators now that we want an end to minimum mandatories and privatization, some kind of meaningful oversight of the AZ DOC, and accountability for these private prisons so they have that in their heads when the next session opens in January. They are all at 1700 W Washington St. Phoenix 85007 or find them here

Arizona House of Representatives 2013

Arizona faces growing cost of private prisons
State begins to place inmates in new facility
The Republic |  
Sun Dec 29, 2013 12:39 AM
The Red Rock Correctional Center, Arizona’s newest private prison, will begin housing inmates next month, with taxpayers guaranteeing its owner a profit to help alleviate overcrowding in the state penitentiary system.
State Corrections Director Charles Ryan hopes to house up to 1,000 inmates there by the end of next year — twice the number originally planned in the first year. The facility along East Arica Road and Arizona 87 just outside Eloy has the capacity for 1,596 inmates.

The complex about 65 miles south of Phoenix was built in 2006 by Corrections Corporation of America to house inmates for the state of California. After CCA won an open-bid contract last year to house Arizona inmates, it moved its California prisoners to other CCA sites around the country.

According to Ryan, state-owned facilities have roughly 5,000 inmates sleeping in temporary beds because of overcrowding. Arizona, as of Friday, housed 41,157 inmates, about one-sixth of them in private facilities.

“The department was in need of beds,” Ryan said. “The solution was a private-prison operator.”

Corrections officials forecast the state prison population will surpass 43,000 in fiscal 2016, despite four recent years of relatively little growth or declines in the population.

The Corrections Department is wary of building its own new prisons to accommodate the growth, citing costs that could exceed $100 million. Instead, it is expanding its use of private prisons.

If the contract lasts 20 years as expected, the long-term cost of the CCA contract is likely to exceed $400 million.

CCA wins contract

The Corrections Corporation of America beat four other private-prison companies in August 2012 to win the contract.

CCA is guaranteed a 90 percent occupancy rate at Red Rock, meaning the state will transfer inmates out of state-operated facilities and into the private prison until the minimum occupancy is met.

The guarantee requires a minimum of 450 inmates by the end of the first year, and 900 by the end of the second, but Ryan wants to accelerate the transfer of up to 1,000 inmates in 2014. There also is room to expand to the facility’s capacity.

Arizona will pay CCA $65.43 a day per inmate. Once the contract is fully implemented, the 90 percent occupancy guarantee will result in the company being paid at least $58,887 a day for 900 inmates — nearly $21.5 million a year. The contract is for an initial term of 10 years, with two five-year renewal options upon mutual agreement. Should the contract run 20 years, CCA could make at least $430 million. Ownership of the facility would transfer to the state after 20 years.

The Arizona Republic reviewed Corrections documents and CCA financial records and calculated the company’s operating margin on the Red Rock contract. The operating margin measures how much of each dollar of revenue from the state Red Rock will keep after ordinary expenses.

The Nashville-based company, which is publicly held, said in a U.S. Securities and Exchange Commission filing that its average total daily expenses per inmate at facilities it owns and manages was $45.89 during the first nine months of 2013. Based on that figure, Arizona’s daily payment will provide $19.54 in daily operating income per inmate, as compared with $22.23 in daily income per inmate the company typically makes in other facilities it owns and operates.

That equates to an operating margin of about 30 percent on the Red Rock contract. The company, which operates 69 facilities in 20 states and the District of Columbia, averages just more than a 29 percent operating margin at all facilities it manages or owns, according to a recent company filing.

The state is requiring CCA to make numerous improvements, such as building a new softball field, enhancing dining facilities and adding parking at Red Rock. The company, in an SEC filing, said it expects to incur approximately $20.5 million in capital-improvement expenses — less than what it will make in an entire year with Arizona’s occupancy guarantee.

“We are being compensated for a service we provide,” said Steven Owen, a CCA spokesman. “It’s a very specialized service.... We are providing cost savings at the end of the day to taxpayers and relieving unsafe overcrowding.”

Corrections Corporation of America trades on the New York Stock Exchange. For the first nine months of this year, it recorded $1.26 billion in revenue and posted $253.3 million in profit — more than double the earnings recorded for the same time in 2012.

High occupancy

Critics say promising such a high inmate-occupancy rate at Red Rock guarantees CCA a healthy bottom line at taxpayer expense. The occupancy guarantee at Red Rock, however, is the lowest among the state’s three private-prison operators, with other sites having occupancy guarantees of 95 to 100 percent, according to Corrections Department records. The other private operators are the GEO Group Inc. and Management & Training Corp.

Ryan said occupancy-rate guarantees are a way for the state to secure a fixed cost to house inmates, and it keeps contractors from raising rates because of demand. The guarantees also are needed, he said, to attract private-prison operators who must recover their costs to build facilities. The state saves money upfront by not having to build new prisons despite a growing inmate population, he said. The state also assumes ownership of the facilities at the end of the contract.

“We are not closing state prison beds to ensure a private-bed operator a guaranteed occupancy rate,” Ryan said.

But Shar Habibi, research and policy director for a Washington, D.C.-based watchdog group called In the Public Interest, said Arizona taxpayers are on the hook if the CCA beds and other private facilities go unused.

“If you don’t fill those beds, you are still paying for them,” said Habibi, whose group monitors private-prison contracts around the country.

CCA spokesman Owen called In the Public Interest’s claims against private-prison companies “sensationalized.” He said occupancy guarantees are commonly used by state governments to control costs.

“We look at what we can do to provide the most cost-effective solutions,” Owen said.

But Justin Jones, former Oklahoma Department of Corrections director who has worked with Habibi and is an opponent of private prisons, said correctional facilities should be used to reduce recidivism — not become a “profit machine” for private businesses.

Lower costs

Arizona began looking at private prisons in the late 1980s, Ryan said, when a group of lawmakers and Corrections officials visited Louisiana and compared the operational cost between state-run and private facilities.

Ryan, at the time an upper manager at DOC, was asked to go on the trip and assess staffing levels and operations. He said he concluded that the private prison had lower operating costs because it did not have a correctional officer at all of the security posts.

He said his opinion was not solicited at the time about whether Arizona should have private prisons. He sidesteps the question today.

“Private prisons are part of the public policy of the state of Arizona as determined by the Legislature and the executive branch,” Ryan said. “I am here to support the public policy, and that public policy has served the Department of Corrections and the state of Arizona particularly well during difficult budgetary times.... To me, it’s not a philosophical issue. It’s a business decision.”

Arizona’s first contract prison opened in Marana in October 1994, 10 months after a “truth in sentencing” law went into effect that dramatically increased prison sentences and the state’s inmate population, which at the time was just less than 19,000 inmates. Arizona’s prison population is now more than double that.

And since fiscal 1995, the number of in-state private-prison inmates has grown from 273 to 6,489. Arizona also contracted to house inmates with out-of-state private prisons from fiscal 2004 to 2010.

Whether CCA or other private-prison operators save the state money is debatable.

A Corrections Department study found it was less expensive in 2008, 2009 and 2010 to house inmates in state-run medium-security facilities compared with similar in-state private facilities.

That still may be the case, but it is difficult to determine because the state no longer factors inmate costs the same way.

In fiscal 2013, which ended June 30, the non-adjusted average daily cost per inmate at a medium-security prison was $64.52, compared with the private-prison cost of $58.82.

However the state’s number includes inmates who have significant medical or mental-health issues. The private prisons house only healthy inmates.

When an adjustment is made for the medical costs, the balance tips significantly in the state’s favor.
The adjusted 2010 daily cost of housing a medium-security inmate in a state-run facility was $48.42, compared with the private-prison cost of $53.02.

Ryan acknowledged that private-prison inmates are “a healthier, less-expensive population” to house.
The Legislature in 2012 repealed the law that required the Corrections Department to conduct a state and private cost comparison, which had occurred since fiscal 1995.

Tuesday, December 24, 2013

Special Events 12/30: Insurgent Theater and the Shadow of Lucasville.

As most folks here know, a show I've put together featuring art and letters from state prisoners will be running at the Firehouse Gallery (1015 N. 1st St, PHX) every weekend (F 6-11/S 1-11/ S 1-6) through Sunday, January 5. Best night to come will be during First Friday Artwalk, Jan 3 between 6-8 pm (then come back at 9 for the Firehouse's original "First Friday Night Live" Show too!)

Displays include collages of material from the women's prison, from supermax, and from prison rape survivors, several of whom are transgender women in men's prisons. I also have some individual prisoner art, including some from my good friend and former blogger Shannon Clark, authoer of "Persevering Prison".

I also put together a whole display on a prisoner-initiated and autonomously-run project, the WOMMB Institute, that's helping guys focus on positive personal and community development in an enviroment under seige by prison gangs. It was developed by a lifer in AZ DOC's Winslow prison with whom I've been corresponding for the past year. Here's the blog I started for WOMMB over the summer, which gives you a good sense of what he's all about.

On December 30, the Last Monday of 2013, we'll also be opening the gallery for two special events, back-to-back. If you're bored silly the night before New Year's eve, come out and support us - especially loved ones of prisoners out there. In fact, this would be a great chance to meet others in your shoes - and to meet me, if we only know eachother by Facebook and email so far. Bring something to eat if you plan to hang out all evening - either your own dinner or a dish to pass - or just drop in at any point throughout the night. We'll open at 6pm and probably close up around 10 or 11. 

At 6pm, we'll have the following:

The Shadow of Lucasville     (Directed by D Jones - 60 minutes)

Follow-up to the award winning documentary film, The Great Incarcerator, part 1: Dark Little Secret

The Shadow of Lucasville revisits the 1993 uprising at the Southern Ohio Correctional Facility, one of the longest in U.S. history, while exploring the fight for human rights and media exposure through inmate uprisings in response to mass incarceration and dehumanization supported by the prison industrial complex.

The film will be followed by conversation with death-sentenced survivors of the uprising, who will be calling in from the Ohio State Penitentiary, Ohio's supermax prison. 

Then, at 8pm, Insurgent Theater will perform:

Behind the Badge: A Theatrical Examination of Police and Prison in America.

Written by Ben Turk, Directed by Kate Pleuss, Performed by Ben Turk – 90 minutes

What does it mean to be a compassionate, dedicated, humane police officer in the country with the world's highest incarceration rate and a continuing tradition of racial injustice? Insurgent Theatre brings audiences behind the badge of a neighborhood liaison officer, using stripped-down interactive theatre and a radical analysis to peer into the inner life of a man in blue. 


Wednesday, December 18, 2013

Raising an Army of Abolitionists and Organizers: Help Wanted.

This goes out to loved ones of AZ prisoners and those who have lost loved ones in AZ DOC's dungeons: 

If you are willing to be on call as part of an organized army of prisoner friends and family members who can show up for rallies and press conferences, sign petitions, do data entry, answer letters from prisoners needing help, write letters to the editor, make phone calls, support the family support groups (see the AZ Justice Alliance and Prisoners R People at PUENTE for that), meet with struggling peers, or otherwise show solidarity with eachother when one of you is in crisis, please FB message or email ( me. My cell is 480-580-6807; you can call me anytime. Whether you're more comfortable lying low behind the scenes, or have a penchant for in-your-face guerilla art and theater, you all have something to give. Everyone can do something to resist new prisons, assert human rights in custody, confront state violence, and unpack the prison industrial complex for the general public. We do not have to stand powerless against the state, and there is no reason that any of us should have to stand alone.

So, let me know about your day to day availability, your level of comfort with media visibility, your willigness to speak publicly or write anonymously as a family of a prisoner, your biggest concerns for your loved one while imprisoned, and of course your relationship to the prisoner (mom, friend, etc) - it may also help me to know who the prisoner is so I'm oriented to who everyone out there is.  There are at least 50- 80 of you out there in my FB Friendland, between my personal FB page and the Arizona Prison Watch page - who knows how many more family and friends hit this blog but never contact me. I think we can really put something powerful together if we try. And I have the feeling we need to be ready for an action soon.

The mural above was done by a small community of anarchists and prisoners' loved ones last summer, not just me - that's what makes the memorial all the more sacred, the embrace by the free world of those who have been lost in prison. There are even more names now, sadly, and I'm a bit older than I was the last time, so I need everyone's help for the next one, among other things. Right now, though, I'll be happy to start with a coherant contact list for you all,  so get back with me soon, please. If you feel okay with leaving your snail mail addy with your phone and email,  I like to know how to reach people in the real world, not just the FB or digital ones, too. You just might get a cool postcard from me someday.

Thanks for your help, and I'll look for your messages over the course of the next few days - or, if you're in Phoenix, come see me at The Firehouse Gallery this weekend, and see the Art of Resistance: Voices from Arizonas State Prisons while you're there.

Tuesday, December 17, 2013

The Art of Resistance: Voices from Arizona's state prisons (Art and Letters: 2009-2013).

I've been away from my blogs of late due largely to an art project I've been working on with prisoners. That's all been for the opening of a show I'm organizing this month of their gifts of art and their most compelling - and representative - letters about AZ prison life. My main objective is simply to amplify their voices, not narrate their world for them, as I often end up doing in my blogs; they do a good enough job of speaking for themselves.  So, below is the flyer - take a close look at Reese's visionary art, too. I was stunned when it came in from the Supermax prison last week. Posters of it will available to raise funds for further prison outreach, assuming we have the artist's explicit blessings by then.

The show will be running every weekend through Jan 5th, 2014. Friday, Jan 3 is the First Friday of the new year for Artwalk in Phoenix, so if you don't make it by the show before then, bundle up and take the light rail to Roosevelt and Central, then come on over to the Firehouse Gallery at 1015 N. 1st St. for a little reception from 6-8pm. Roam the streets and take in the music, art, and streetcorner preachers for a few hours, then come through the alley behind 1st street to the Firehouse Cafe to see the brilliant and talented cast of First Friday Night Live go on stage at 10 pm. There really are some amazing people in this town, as these guys are known to sing.

I plan to be there for all our open hours (on the flyer below) while the show is up, but call me if you want to make sure I'm in before you drop by (480-580-6807). There are some great big and little stocking stuffers to pick up, like tshirts, jewelry and mixed media locally made by members of the 23 Collective, which has so graciously embraced me as as bona-fide starving artist.  You can also can find funky stuff there like skull socks and a large collection of phallic pendants (go figure). A second hand shop is in the Gallery as well: The Side Car Alley carries some cool vintage and collectible stuff, and Joanna's often there doing henna for folks. And of course it's the only place in town you can find a Baby Abolitionist onesie or bib, or a travel coffee mug that shouts to the cop ticketing you "Resist police oppression!". The latter stuff (and skull socks) comes from yours truly.

Blessings to all who have supported my work this year: you should especially be sure to hit the show, because these voices would have been left unanswered without the postage, data entry, free photocopies, and other help this community has given. I'm still not a member of the non-profit industrial complex, so to speak, but I really do live near poverty and in perpetual debt due to my prison outreach activities.  I don't charge prisoners or their families for my help - though many do send what they can - so if you donate for more reasons than a tax writeoff, please keep sending it my way. It takes $3.00 in postage and a little printing to send a packet of self-help materials and hope to a sick or traumatized prisoner trying to survive their stay at the AZ DOC, which seems like such a small investment for a big return...I get about 10-15 requests for materials a week,  though, so it really adds up. I'm up to about 500 prisoners on my mailing list now as well - which means my first 2014 newsletter will cost about $250 this year. That's the next project I'll be begging for your help with, so save me your leftover Christmas stamps again, my friends - and find me at PO Box 20494 PHX 85036.

Until then, peace and love -


Saturday, December 7, 2013

Truth-in-Sentencing, Pleas, and AZ's Judiciary: Time for a change.

Good report out by Human Rights Watch this past week about mandatory minimum sentencing and the damage of the whole plea bargain process in America. The report looks mostly at federal guidelines, but has implications for us at the state level. Where most states are decreasing both prison populations and crime, Arizona is just growing our prison capacity to pack more people away. We desperately need to do something different, soon. We can't even provide pillows for all the prisoners, much less safe quarters or decent medical care.

Judges in this state should know better than almost anyone what a crime it is to have these mandatory minimum sentencing guidelines - Arizona's are some of the worst, as are the plea bargains. People are punished brutally by prosecutorial excess and sentencing guidelines for taking things to trial that they may get probation on if they pled guilty - those tend to be the people who won't compromise because they adhere to their innocence - and they get the worst sentences when found guilty. 

The judiciary, therefore, should really be leading this charge - why are they so silent, then, instead of lining up to give testimony to the legislature? They only compound their complicity in something they know is wrong the longer they fail to speak out. Meanwhile, peoples' lives are laid to waste. 

Andrew Thomas - the Maricopa County attorney who was disbarred a couple years ago for abuse of power, among other things - boasts over 200,000 felony convictions during his reign alone - many of which were plea bargains, and some of which were witch hunts of innocent people, like Lisa Randall.   But Thomas was really only punished when he went after the rich and poweerful, not the ordinary people. The politicans he persecuted got huge settlements for defamation, while the ordinary citizens who got caught in his prosectuion machine - like Courtney Bisbee - remain imprisoned and fighting for justice.

Here is the Arizona Supreme Court: ask them why they haven't assumed leadership in advocating for an end to mandatory minimums in Arizona. Seriously - maybe if they get enough letters they will realize that promoting sound, evidence-based sentencing policies is responsible judicial leadership, while rubber-stamping injustice is a betrayal of what they are supposed to be all about. Contact them through the court clerk on the fourth floor of the Arizona State Courts Building.

By Phone:  602 - 452 - 3396
By Email:

Arizona Supreme Court
1501 W. Washington, Suite 402, 
Phoenix, AZ  85007-3232  

And here are the judges of the Maricopa County Superior Court - hold them accountable too. 
Maricopa County Superior Court
125 W. Washington
Phoenix, AZ 85003
(602) 506-3204
Tell them all that the "truth in sentencing" is that way too many decent, salvageable human beings are languishing and dying in Arizona's prisons under sentencing guidelines designed to profit political careers and privateers, not promote public safety or justice.  Tell our judiciary to show some courage and take the legislature to task over it this coming session. Evidence-based sentencing is where it's at thee days -we need legislation that works for the people, not just for the politicians. We're building and filling new prisons, when we should be emptying them.
It's time for a change, Arizona. Let's not lag behind the rest of the country on this one - c'mon and step out in front, Arizona's Honorables, and do the right thing. You are reponsible for our bulging prisons, too...
"Truth in Sentencing: Incarceration is Violence."
 Maricopa County C0urt Complex, Phoenix (11/01/13)


HUMAN RIGHTS WATCH (December 1, 2013)
An Offer You Can't Refuse: Mandatory Minimums in America


Darlene Eckles let her drug-dealing brother operate from her house for six months and helped count his money. Federal prosecutors offered to let her plea to a 10-year sentence; she rejected the offer and is now serving an almost 20-year sentence.

Federal prosecutors offered to let Patricio Paladin plead in return for a 20-year sentence for cocaine distribution. He refused to plead and is now serving a sentence of life without parole.

Weldon Angelos was offered a plea of 15 years for marijuana distribution and gun possession. He refused the plea and is now serving a 55-year sentence.

Eckles, Paladin, and Angelos were convicted of federal drug and gun offenses after rejecting plea offers and opting instead to go to trial. Prosecutors sought their remarkably long sentences—at least double the time they would have served had they agreed to plead—not only for their crimes,  but for refusing to plead guilty on the prosecutors’ terms.


The right to trial lies at the heart of America’s criminal justice system. Yet trials have become all too rare in the United States because nine out of ten federal and state criminal defendants now end their cases by pleading guilty.

There is nothing inherently wrong with resolving cases through guilty pleas—it reduces the many burdens of trial preparation and the trial itself on prosecutors, defendants, judges, and witnesses. But in the US plea bargaining system, many federal prosecutors strong-arm defendants by offering them shorter prison terms if they plead guilty, and threatening them if they go to trial with sentences that, in the words of Judge John Gleeson of the Southern District of New York, can be “so excessively severe, they take your breath away.”[1] Such coercive plea bargaining tactics abound in state and federal criminal cases, including federal drug cases, the focus of this report.

Plea bargaining means higher sentences for defendants who go to trial. In 2012, the average sentence of federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months).

The threat of higher sentences puts “enormous pressure [on defendants] to plead,” Mary Pat Brown, a former federal prosecutor and senior official in the Justice Department told us.[2] So much so that plea agreements, once a choice to consider, have for all intents and purposes become an offer drug defendants cannot afford to refuse. Only three percent of federal drug defendants go to trial. Human Rights Watch believes this historically low rate of trials reflects an unbalanced and unhealthy criminal justice system.

In this report, Human Rights Watch presents cases that illustrate the unjust sentences that result from a dangerous combination of unfettered prosecutorial power and egregiously severe sentencing laws. We also present new data developed for the report that documents the extent of the “trial penalty”— the higher sentences that defendants who go to trial incur compared to what they would receive if they plead guilty. In essence, it is the price prosecutors make defendants pay for exercising their right to trial.

US constitutional jurisprudence offers scant protection from prosecutors who are willing to pressure defendants into pleading and punish those who insist on going to trial. Courts do not view defendants as unconstitutionally coerced to forego their right to a trial if they plead guilty to avoid a staggering sentence. Nor do they consider defendants to have been vindictively—that is, unconstitutionally—punished for exercising their right to trial when prosecutors make good on their threats to seek much higher mandatory penalties for them because they refused to plead. Finally, even when courts agree that prosecutors have sought egregiously long mandatory sentences for drug offenses, they will not rule the sentences so disproportionate as to be unconstitutionally cruel.

Prosecutorial Power and Mandatory Sentences

Prosecutors have discretion, largely unreviewable by judges, as to what charges to bring, what promises or threats to make in plea bargaining, and whether to carry out those threats if the defendant does not plead.

While all prosecutors are in a powerful position vis-a-vis criminal defendants, the power of federal prosecutors in drug cases is strengthened by mandatory sentencing laws that curtail the judiciary’s historic function of ensuring the punishment fits the crime. When prosecutors choose to pursue charges carrying mandatory penalties and the defendant is convicted, judges must impose the sentences. Prosecutors, in effect, sentence convicted defendants by the charges they bring.

Prosecutors typically charge drug defendants with offenses carrying mandatory minimum sentences. Mandatory minimum drug sentences are keyed to the weight of the drugs involved in the offense (and the weight of filler substances, like cornstarch, used to dilute the drug). For example, the mandatory minimum sentence for dealing 5 kilograms of cocaine is 10 years and the maximum is life, regardless of the defendant’s role or culpability. The sentence imposed upon conviction will usually be higher than the minimum, as judges—taking their cue from the federal sentencing guidelines—take into account the actual amount of drugs involved in the crime, the defendant’s criminal history, and other aggravating and mitigating factors.

In fiscal year 2012, 60 percent of convicted federal drug defendants were convicted of offenses carrying mandatory minimum sentences.[3] They often faced sentences that many observers would consider disproportionate to their crime. An addict who sells drugs to support his habit can get a 10-year sentence. Someone hired to drive a box of drugs across town looks at the same minimum sentence as a major trafficker caught with the box. A defendant involved in a multi-member drug conspiracy can face a sentence based on the amount of drugs handled by all the co-conspirators, even if the defendant had only a minor role and personally distributed only a small amount of drugs or none at all.

Drug defendants have only three ways to avoid mandatory sentences: they can go to trial and hope for an acquittal, even though nine out of ten defendants who take their chances at trial are convicted; they may (if they are a low-level, nonviolent drug offender with scant criminal history) qualify for the limited statutory safety valve that permits judges to sentence them below the applicable mandatory sentences if they are convicted—although most defendants do not qualify; and they can plead guilty.

Most prosecutors will offer drug defendants some sort of plea agreement that reduces their sentence, sometimes substantially. Indeed, they file charges carrying high sentences fully expecting defendants to plead guilty. To secure the plea, prosecutors may then offer to lessen the charges, they may offer to reduce the ones that do not carry mandatory sentences, to stipulate to sentencing factors that lower the sentencing range under the sentencing guidelines or, at the very least, to support a reduced sentence based on the defendant’s willingness to accept responsibility for the offense, i.e., to plead guilty. Prosecutors may also agree to file a motion with the court to permit the judge to sentence below the mandatory sentences when the defendant has provided substantial assistance to the government’s efforts to prosecute others.

But prosecutors also threaten to increase defendants’ sentences if they refuse to plead. Perhaps their most powerful threats are based on two statutory sentencing provisions that can dramatically increase a drug defendant’s sentence. Under 21 U.S.C. §841(b)(1) prior felony drug convictions can dramatically increase a mandatory minimum drug sentence. Under 18 U.S.C. §924(c) prosecutors can file charges that dramatically increase a defendant’s sentence if a gun was involved in the drug offense. Prosecutors will threaten to pursue these additional penalties unless the defendant pleads guilty – and they make good on those threats.

Prior Convictions

Sentencing enhancements based on prior drug convictions are triggered only if prosecutors choose to file a prior felony information with the court. If a prosecutor decides to notify the court of one prior conviction, the defendant’s sentence will be doubled. If the prosecutor decides to notify the court of two prior convictions for a defendant facing a 10-year mandatory minimum sentence on the current offense, the sentence increases to life—and there is no parole in the federal system.

Many defendants plead when faced with the threat of such sentences. Early in 2013, for example, Lulzim Kupa refused to plead even though he was looking at a mandatory minimum of 10 years for distributing cocaine. A few weeks before the scheduled trial date, the government filed a prior felony information providing notice of two prior marijuana convictions. It then offered to withdraw the notice (as well as the original 10-year mandatory minimum) if Kupa would plead to a lower charge. He did, and avoided the prospect of life in prison—eventually receiving a sentence of 11 years.[4]

Involvement of Weapons

If a weapon was involved in a drug offense, prosecutors will press the defendant to plead by raising the specter of consecutive sentences under 18 U.S.C §924(c). The first §924(c) conviction imposes a mandatory five-year sentence consecutive to the sentence imposed for the underlying drug crime; second and subsequent convictions each carry 25-year consecutive sentences—resulting in grotesquely long sentences for drug defendants. In 2004 for example, Marnail Washington, a 22-year-old with no criminal history, was sentenced to 40 years after conviction of possession with intent to distribute crack cocaine and two §924(c) counts based on possessing, but not using, guns in connection with his drug offenses. That is, 30 years of his 40-year sentence were on gun counts.

It is entirely up to prosecutors whether to pursue these increased penalties against an eligible defendant. If they do and the defendant is convicted, the penalties are mandatory and judges must impose them. In one case in 2002, Judge Paul Cassell was so distressed at his powerlessness to avoid imposing an unduly harsh sentence on a young marijuana dealer (55 years for convictions on three §924(c) counts) that in his sentencing memorandum he called on President George W. Bush to commute the sentence. The president did not do so. And in a 2010 case, Judge Kiyo Masumoto said that she thought a 20-year sentence was “quite more than necessary” in the case of Tyquan Midyett, a low-level drug dealer who refused a 10-year plea and the prosecutors then doubled his sentence by filing a prior felony §851 information. Still, the judge said she did “not have discretion under the law to consider a lesser sentence.”[5]

Punishment to Fit the Crime?

Under well-established criminal justice principles, reflected in US and international human rights law, convicted criminal offenders should receive a punishment commensurate with their crime and culpability and no longer than necessary to serve the legitimate purposes of punishment. Those purposes include holding offenders accountable for their wrongdoing, protecting the public by keeping them in prison, deterring crime, and rehabilitating the offenders. They do not include penalizing defendants for going to trial or discouraging future defendants from doing so.

Prosecutors nonetheless believe a defendant’s insistence on going to trial is a perfectly legitimate reason to pursue an increased sentence—even one that is wholly disproportionate to the underlying offense. As a former US Attorney told us: “We weren’t trained to think about the lowest sentence that serves the goals of punishment.” [6]

Even prosecutors who try to achieve fair sentences through plea bargains acknowledge that the quest for fairness ends if the defendant refuses to plead. Prosecutors also insist they are not "punishing" defendants with higher sentences when they refuse to plead guilty, but rather “rewarding” defendants who, by pleading, spare them the expenditure of time and resources needed for a trial. From the perspective of the defendant looking at a significant trial penalty, this is no distinction.

Once they have made a threat during plea negotiations, prosecutors believe they must follow through with it if the defendant goes to trial, both because a defendant who refuses to plead deserves “no mercy,” and because they want to be sure future defendants take their threats seriously. They think they will lose credibility if they permit defendants to reap the same sentencing "concessions" after a trial as they had been offered if they pled. Asked if they thought these much higher post-trial sentences are just, prosecutors dodged the question.

In 2012, 26,560 federal drug defendants were prosecuted by 93 US Attorneys and over 5,400 assistant US attorneys in 94 federal districts.[7] Determining prosecutorial practices and policies in each district is beyond the scope of this report. Our research shows that prosecutorial charging and plea bargaining practices vary dramatically from district to district. It also shows that the trial penalty is widespread across the country.

Key Findings

Using sentencing data from individual cases collected nationwide by the United States Sentencing Commission (the Sentencing Commission), most of it from 2012, Human Rights Watch has developed statistics that shed light on the size of the trial penalty. Each case contains a unique mix of factors that results in the final sentence, but our findings nonetheless provide deeply troubling evidence of the price defendants pay if they refuse to plead.

Among our findings:

Defendants convicted of drug offenses with mandatory minimum sentences who went to trial received sentences on average 11 years longer than those who pled guilty (215 versus 82.5 months).

Among first-time drug defendants facing mandatory minimum sentences who had the same offense level and no weapon involved in their offense, those who went to trial had almost twice the sentence length of those who pled guilty (117.6 months versus 59.5 months).

Among defendants who were eligible for a sentencing enhancement because of prior convictions, those who went to trial were 8.4 times more likely to have the enhancement applied than those who plead guilty.

Among drug defendants with a weapon involved in their offense, those who went to trial were 2.5 times more likely to receive consecutive sentences for §924(c) charges than those who pled guilty.

These statistics cannot fully capture the leverage that prosecutors exert over individual defendants during plea bargaining. If a prosecutor’s threats are made orally, there may be no written record of them. During hearings, when the judge makes a decision whether to accept a plea agreement, it is rare for prosecutors, defense counsel, or defendants to mention the sentencing risk defendants faced if they did not plead.

The following case exemplifies the dire consequences that result when prosecutors made good on their threats to pursue increased sentences for a defendant who refuses to plead. A prosecutor who was willing to accept a plea that gave the defendant a 10-year sentence, was willing to have her sentenced to life without parole because she insisted on going to trial.

Sandra Avery[8]

Sandra Avery was a survivor of childhood sexual abuse who served in the army and the army reserves, earned a college degree, overcame an addiction to crack, became a born-again Christian, and worked as an accountant. But in her early forties, her life spun out of control: she became addicted to crack cocaine again, lost her job, and started delivering and selling small amounts of crack for her husband, a crack dealer.

In 2005, Avery was arrested and indicted by a federal grand jury for possessing 50 grams of crack with intent to deliver, an offense then carrying a mandatory minimum sentence of 10 years. Avery refused to enter into a plea agreement with the government because it did not offer anything less than 10 years and because, as she says, “I simply was not in my right mind at the time.” She was convicted after trial, and sentenced to life. Because there is no parole in the federal system, she will remain in prison until she dies.

The life sentence resulted from the government’s choice to trigger a sentencing enhancement based on Avery’s previous drug convictions. During the early 1990s, she had been convicted three times under Florida law for possessing small amounts of crack for her personal use; she told Human Rights Watch that the value of drugs in those three cases amounted to less than $100 and she was sentenced to community supervision.

When Human Rights Watch asked Avery’s prosecutor why he sought the enhancement in her case, he said “because it applied.” He said the policy in his office is to seek such enhancements whenever they are applicable, although there is “room to negotiate” if a defendant pleads guilty and agrees to cooperate with the government. His office policy also permits prosecutors to seek approval from their superiors not to file for the enhancement, which did not happen in Avery’s case. Asked whether he thought Avery’s life sentence was just, he refused to comment.

A Call for Federal Reform

In an August speech to the American Bar Association, Attorney General Eric Holder endorsed the need to reform federal sentencing laws and practices to reduce the number of people sent to prison and the length of their sentences.

Identifying “just sentences” for low-level, nonviolent drug defendants as a Department of Justice priority, Holder issued a memorandum to federal prosecutors instructing them to avoid charging offenses carrying mandatory minimum sentences for certain low-level, nonviolent offenders. He also directed prosecutors to avoid seeking mandatory drug sentencing enhancements based on prior convictions when such severe sentences are not warranted.

 It is too soon to tell how prosecutors will carry out the new policies: they contain easily-exploited loopholes and do not prohibit prosecutors from pursuing harsh sentences against a defendant who refuses to plead. Moreover, there is no remedy if prosecutors ignore the letter or spirit of Holder’s policies. If a defendant is convicted, the judge must impose the applicable mandatory minimum sentence or sentencing enhancement sought by the prosecutor.

A recent case in which the defendant was sentenced after Holder issued his memorandum suggests some prosecutors may continue to seek egregiously long sentences for drug defendants who refuse to plead.

Roy Lee Clay[9]

On August 27, 2013, a federal court sentenced part-time house remodeler, Roy Lee Clay, 48, to life behind bars without possibility of parole. He was convicted after trial of one count of conspiring to distribute one kilogram or more of heroin—a crime that normally carries a 10-year sentence. Prosecutors asserted he was part of a 14-person heroin trafficking group centered in Baltimore, Maryland, and that for two-and-a-half years, Clay distributed heroin to other dealers and to users as well. There was no evidence in his case that he used violence to further his drug activities.

Clay had two prior drug convictions: a 1993 federal conviction for possession with intent to distribute 100 grams of a mixture containing heroin for which he was sentenced to 87 months in prison, and a 2004 state conviction for possession with intent to distribute controlled substances.

The government offered to let Clay plead to 10 years on the drug charges. It also threatened to file an information with the court seeking a penalty enhancement to life based on the two prior convictions if Clay insisted on going to trial. He rejected the plea offer and went to trial, which ended with a hung jury. The government renewed the 10-year plea offer, but Clay again refused. After the second trial, Clay was convicted. The government made good on its threat and sought the mandatory enhancement based on the two prior convictions.

Previously willing to accept a 10-year sentence, prosecutors ensured Clay would spend the rest of his life behind bars.  At his sentencing, Judge Catherine Blake called the life without parole sentence “extremely severe and harsh.” [10]

One prosecutor in the case told Human Rights Watch he thought the life sentence was consistent with the Attorney General’s August 2013 memorandum instructing prosecutors to seek prior conviction enhancements only in cases in which such severe sanctions are appropriate. Still, he refused to explain why he thought Clay deserved a life sentence.

Looking Ahead

As an organization dedicated to enhancing respect for and protection of human rights, Human Rights Watch insists that individuals who violate the rights of others be held accountable for their crimes. We also insist that all people accused of crimes have fair legal proceedings to determine their guilt.

Plea agreements do not necessarily violate human rights; defendants may choose to give up their right to trial in return for a sentencing concession. Nevertheless, plea bargaining as practiced in US federal drug cases raises significant human rights concerns. It is one thing for prosecutors to offer a modest reduction of otherwise proportionate sentences for defendants who plead guilty and accept responsibility for their offense. Such a discount does not offend human rights.

But the threat of a large trial penalty is unavoidably coercive and contrary to the right to liberty and to a fair trial. In some cases, the sentences imposed on drug defendants who refused to plead are so disproportionately long they qualify as cruel and inhuman.

Momentum is growing to end nearly three decades of harsh sentences for federal drug offenders amid growing realization that the US cannot incarcerate its way out of drug use and abuse, and that long sentences neither ensure public safety nor strengthen communities. There is also growing and welcome national recognition that meaningful reform of federal drug laws must include restoring sentencing discretion to federal judges.

We believe Congress should eliminate mandatory minimum drug sentences: the one-size-fits-all approach of the mandatory minimum statutes prevents sentences tailored to the individual case. Congress should also eliminate mandatory penalties based on prior convictions or guns. With sentencing guidelines and appellate review to keep judicial sentencing discretion within appropriate bounds, there is no need for mandatory punishments that primarily serve to coerce defendants into pleading guilty, an unacceptable exercise of government power.

A sound criminal justice system, like all forms of good government, needs checks and balances. Prosecutors should have charging discretion and be encouraged to exercise it carefully and fairly. But the final say over sentences defendants receive must come from independent federal judges who have no personal or institutional stake in the outcome of a case other than to ensure justice is done and rights are respected. Judges with sentencing discretion could end the disgraceful trial penalty in federal drug cases and ensure defendants receive sentences reflecting their crimes, not their willingness to plead.[11]


Human Rights Watch offers the recommendations below to end the prosecutorial practice of coercing drug defendants into guilty pleas with threats of draconian sentences. Our recommendations address both the need for reform of the federal sentencing regime and the need for constraints on prosecutorial plea bargaining practices.

Our most important recommendation is for Congress to restore sentencing discretion to the federal judiciary. While mandatory punishment is not the only factor that convinces defendants to plead guilty, there is no question prosecutors coerce many pleas because they can threaten exorbitant mandatory sentences for defendants who go to trial. If federal judges had authority to review and revise drug sentences to ensure they satisfy the requirements of justice, it would diminish the power of prosecutorial threats.

Our recommendations would not eliminate plea bargaining. Prosecutors could offer modest sentence reductions to reward defendants who choose to plead guilty. But prosecutors would no longer be able to force defendants to plead to avoid grotesquely long sentences. They would be required to charge offenses carrying sentences proportionate to the defendant’s crime and culpability, they would be limited in the extent of the discount from those sentences that could be offered in exchange for the defendant’s willingness to plead guilty, they would be prohibited from threatening superseding indictments with higher charges in order to secure a plea and, finally, they would be prohibited from filing such indictments to punish defendants who refuse to plead.

To Congress
End mandatory minimum drug sentences and restore to judges the ability to calculate proportionate sentences in all drug cases, taking into account the sentencing guidelines for federal drug defendants. Congress should enact legislation to:

Abolish federal mandatory minimums for drug offenders based upon the quantity of the drug involved.

Abolish mandatory sentence increases based on the number and nature of prior convictions.

Abolish mandatory consecutive sentences for drug defendants who use, carry, or possess firearms in connection with their drug crime.

To the Attorney General

Establish just sentences as a Department of Justice goal for all drug offenders regardless of whether they plead guilty or go to trial. Define just sentences as those which are proportionate to the defendant’s individual conduct and culpability and which are no longer than necessary to further the purposes of punishment in each individual case.

Direct prosecutors to seek indictments only for charges that would yield a fair and proportionate sentence for each individual defendant in light of the facts known about that defendant. If an offense carrying a fair sentence has been charged, prosecutors may offer a modest sentencing benefit to reward a defendant for pleading guilty, but should not offer to reduce the defendant’s sentence to such an extent as to coerce the defendant into waiving the right to trial. We urge the Department of Justice to establish parameters for what such a modest reward might be. In addition, the Department of Justice should explicitly prohibit prosecutors from: 1) threatening higher sentences to secure pleas from drug defendants and 2) filing superseding indictments that raise the sentence faced by a defendant solely because the defendant refused to plead guilty.

Monday, December 2, 2013

Corizon's prisoners dying younger from suicide and "natural causes".

Prior to this latest suicide at Eyman, I was concerned about the number of successful suicides of late - most specifically, since Corizon took over. Take a look at what I found when I examined the DOC's death reports from January 2012- October 2013 (which encompasses 6 months of the DOC administering health care, then 8 months of wexford, and 8 months of Corizon). The average age of death is getting dramatically younger (even when controlled for suicides and homicides), and there are WAY more suicides now. Do the numbers yourself. And check out the AFSC-Tucson's report again: DEATH YARDS. There's a lot to it.

Most of the suicides are happening in single cells, and appear to be related to prisoenrs having a poorly managed serious mental illness and/or suiciding for fear of being on the GP yards - but those conclusions require more study, once investigations are complete and state records are available. 

I'm concerned about the suicides and the connection there may be between them and the frequent reports I've received that prisoners on psychiatric medications have had thier meds abruptly stopped by Corizon doctors, and have been changed to less effective meds than they were previously on, including some that really aren't even used  anymore in the free world due to their side effect profiles, like thorazine. 

In the meantime, Eyman prisoners' visits with their mental health professionals are being done by video-conferencing after theyr'e all herded - chained - into a big cell together. I can't tell if the mental health reivews are actually then conducted en masse, or if they are provided some smeblance of privacy but only get about 5 mins of the provider's time. I believe Donna Hamm is trying to sort out exactly how psychiatric evaluations are beign done for maximum security prisoners at Eyman. 

In any case, given the number of suicides at Eyman in the past year, I think they should re-evaluate the effectiveness of whatever it is they're doing there by way of mental health treatment...


JAN 2012 - June 2012 : AZ DOC Health care

Jerry McCoy, 53, ADC #108159, died Jan 16 from complications of Hodgkin’s lymphoma
Alfonso Farmer, 23, ADC #219587 died Jan 22 from an apparent suicide
Alvin Rhodes, 64, ADC #264597, died Jan 22 from complications of cancer
Harry Gardner, 82, ADC #167824, died Jan 20 from complications of lung cancer
Forrest Day, 19, ADC #258301, died Jan 27 from a suspected suicide

Francisco Leon, 64, ADC #90634, died Feb 13 from end stage renal disease
James Toppin, 63, ADC #216346, died Feb 12  from apparent natural causes
Daniel Porter, 48, ADC #61424, died Feb 20 from water intoxication
Clifford Fritz, 41, ADC #129311, died Feb 23 from cancer.

Edward Baeza, 56, ADC #43508, died Mar 11 from apparent natural causes
Cesar Carbajal, 35, ADC #268481 died mar 15 from unknown causes
Nolan Pierce, 23, ADC #245734, died Mar 16 from a possible homicide
David Hunt, 34, ADC #109305, died Mar 25  from medication OD
George Bredemann, 69, ADC #83222, died Mar 31 from apparent natural causes

Shon Wilder, 33, ADC #129144, died April 20 from a possible homicide
Isabelle Trujillo, 61, ADC #076085, died April 24 from apparent natural causes
Joseph Venegas, 29, ADC #185473, died April 25 from unknown causes (pneumonia)
David Washburn, 69, ADC #098366, died April 27 from apparent natural causes

Robert Ginan, 69, ADC #220296, died May 7 from apparent natural causes
Owen Vilan, 54, ADC #242276, died May 8 from apparent natural causes
Enrique Orozco, 46, ADC #119841, died May 22 from apparent natural causes
Robert Charo, 61, ADC #049825, died May 23 from apparent natural causes
T Ray Washington, 41, ADC #240344, died May 25 from apparent natural causes
Candelario Baca, 69, ADC #039760, died May 30 from apparent natural causes

Louis Jernigan, 67, ADC #30249, died June 4 from apparent natural causes
Philip Hawes, 64, ADC #253330, died June 4 from apparent natural causes
George Phillips, 69, ADC #058612, died June 13 from apparent natural causes
Herbert Shockey, 77, ADC #025634, died June 21 from apparent natural causes
Xaxier Milea, 39, ADC #255646, died June 26 from apparent natural causes

JULY 2012 - MARCH 2013 : WEXFORD

Nelson Johnson, 31, ADC #143345 died July 1 from apparent suicide
Richard Johnsen, 58, ADC #052572, died July 16, from apparent natural causes
Daniel Salazar, 55, ADC #129065, died July 19 from apparent natural causes
Lawrence Tashquinth, 50, ADC #229672, died July 19  from apparent natural causes
Richard Olivas, 43, ADC #128627, died July 21 from apparent natural causes
Jose Garcia-Morfin, 33, ADC #233520, died July 24 from apparent natural causes
Richard Wojcik, 56, ADC #232593, died July 24 from apparent natural causes
Rock Hannaford, 56, ADC #261578, died July 30 from apparent natural causes

Gregg Large, 48, ADC #247449, died Aug 1 from apparent natural causes
Thomas Truitt, 48, ADC #047727, died Aug 4 from apparent natural causes
Robert Moss, 73, ADC #102474, died Aug 11 from apparent natural causes
Frank Brown, 65, ADC #149637, died Aug 13 from apparent natural causes
Sotero Delgado, 66, ADC #273820, died Aug 16 from apparent natural causes
James Gordon, 55, ADC #140687, died Aug 26 from apparent natural causes
Dixie Arguello, 51, ADC #269814, died Aug 27 from apparent natural causes
Nicholas Martinez, 33, ADC #171587, died Aug 30 from a possible overdose

Darrell Robertson, 33, ADC #258053, died Sept 10 from apparent natural causes
James Makal, 80, ADC #027216, died Sept 13 from apparent natural causes
Ronald Smith, 75, ADC #092788, died Sept 22 from apparent natural causes
Augustine Alvarez, 71, ADC #085367, died Sept 23 from apparent natural causes
Richard Johnson, 60, ADC #232783, died Sept 28 from apparent natural causes

Donald Wisto, 36, ADC #110526, died Oct 7 from unknown causes
Anthony Brown, 43, ADC #077701, died Oct 8 from apparent natural causes
Lonnie Prickett, 63, ADC #073521, died Oct 9 from apparent natural causes
Carroll Sanders, 56, ADC #196447, died Oct 9 from apparent natural causes
Michael Atkins, 48, ADC #263379, died Oct 18 from apparent natural causes
John Mihalec, 77, ADC #104669, died Oct 25 from apparent natural causes
Dallas Richie, 62, ADC #032104, died Oct 27 from apparent natural causes
Alan Cook, 65, ADC #155358, died Oct 28 from apparent natural causes
Cipriano Vigil, 73, ADC #107377, died Oct 31 from apparent natural causes

Timothy Ben, 29, ADC #186585, died Nov 5 from an apparent suicide
John Allie, 53, ADC #042977, died Nov 12 from apparent natural causes
John Beck, 64, ADC #104144, died Nov 14 from apparent natural causes
Jesus Sanchez, 39, ADC #092083, died November 19 from apparent natural causes
Gerald Anani, 58, ADC #269346, died Nov 25 from apparent natural causes
Shane Moulton, 44, ADC #112871, died Nov 25 from apparent natural causes

Monty Hanan, 63, ADC #136053, died Dec 1 from apparent natural causes
Arnold Toliver, 48, ADC #125678, died Dec 5 from apparent natural causes
David Anthony, 64, ADC #184113, died Dec 7 from apparent natural causes
John Ruelas, 46, ADC #059693, died Dec 7 from apparent natural causes
Donald McKay, 57, ADC #270224, died Dec 20 from apparent natural causes
Darryl Gray, 65, ADC #032890, died Dec 25 from apparent natural causes

Richard Glassel, 74, ADC #172967, died Jan 15 from apparent natural causes
William Horton, 48, ADC #062422, died Jan 12 from apparent natural causes
Gary Dixon, 50, ADC #106531, died Jan 28 from apparent natural causes
Nathan Hartman, 36, ADC #156838, died Jan 28 from apparent natural causes
Charles Dawson, 56, ADC #067938, died Jan 29 from unknown causes
Gary Pierce, 69, ADC #041952, died Jan 30 from unknown causes

Robert Akers, 70, ADC #242962, died Feb 1 from unknown causes
Christina Black, 52, ADC #145562, died Feb 12 from an apparent suicide
Robert Sweepe, 63, ADC #093822, died Feb 17 from unknown causes
Bobby Crockett, 49, ADC #106800, died Feb 18  from apparent natural causes
Ernie Lopez, 55, ADC #133681, died Feb 18 from apparent natural causes
Christian Frost, 38, ADC #130811, died Feb 22 from a possible homicide
Rowdy Ferns, 43, ADC #143370, died February 26 from apparent natural causes

MARCH - October 2013 : CORIZON

Vernon Davidson, 58, ADC #127734, died March 3 from apparent natural causes
Rafael Guevara, 23, ADC #254097, died March 11 from heroin overdose
Scott Broadhead, 57, ADC #035145, died March 17 from unknown causes
Kevin Pate, 54, ADC #091377, died March 14 from unknown causes
Jesse Cornejo, 24, ADC #246859, died March 16 from unknown causes
Johnny Lopez, 52, ADC #079275, died March 17 from apparent natural causes
James Smith, 51, ADC #116912, died March 27 from apparent natural causes
William Driver, 72, ADC #162813, died March 29 from apparent natural causes

Kristian Brown, 49, ADC #182532, died April 1  from apparent natural causes
Gary Church, 53, ADC #039345, died April 1  from unknown causes
Billy Lee, 54, ADC #037490, died April 8 from apparent natural causes
Charles Jeffrey, 38, ADC #212819, died April 10 from apparent natural causes
Alberto Jimenez, 36, ADC #138779, died April 14 from apparent natural causes
Joaquin Tamayo, 41, ADC #106163, died April 22 from an apparent suicide
Russell Clark, 53, ADC #059997, died April 25 from apparent natural causes

Paul Henderson, 22, ADC #247636, died May 1 from an apparent suicide
Karl Narten, 82, ADC #024550, died May 6 from apparent natural causes
Milo Stanley, 50, ADC #064794, died May 10 from an apparent suicide
Anthony Martinez, 65, ADC #085596, died May 14 from apparent natural causes
Bobby Smith, 72, ADC #065084, died May 19 from apparent natural causes
Rose Hodges, 49, ADC #113364, died May 20 from apparent natural causes

Mackie McCabe, 57, ADC #049597, died June 2 from apparent natural causes
John Ray, 54, ADC #118850, died June 7 from apparent natural causes
John Jones, 63, ADC #054741, died June 17 from an apparent homicide
Fenton Skaggs, 38, ADC #198534, died June 17 from unknown causes
Dale Hausner, 40, ADC #240702, died June 19 from apparent suicide
Henry Billings, 80, ADC #218617, died June 23 from apparent natural causes

David Valenzuela, 56, ADC #063167, died July 1 from apparent natural causes
Theron Chambers, 72, ADC #040915, died July 3 from apparent natural causes
Galen Lindstrom, 62, ADC #075515, died July 10 from unknown causes
Thomas Herrera, 57, ADC #078507, died July 13 from apparent natural causes
Patrick Hoppes, 48, ADC #242119, died July 17 from an apparent suicide
Alvis Smith, 59, ADC #031588, died July 26 from apparent natural causes.

George Malone, 69, ADC #086899, died August 2 from apparent natural causes
Javier Gonzalez, 23, ADC #217498, died August 14 from an apparent suicide.
Van Branch, 53, ADC #072628, died August 14 from apparent natural causes
George Fierros, 58, ADC #058206, died August 22 from apparent natural causes
Miguel Sanchez, 28, ADC #270127, died August 27 from an apparent suicide.
Marco Chavez, 34, ADC #187239, died August 31 from apparent natural causes

Shawn Southworth, 37, ADC #257109, died September 23 from apparent natural causes
Harold Batista, 21, ADC #270988, died September 25 from unknown causes

Bennie Harris, 54, ADC #067481, died October 1 from apparent natural causes
Richard Hildenbrand, 80, ADC #140990, died October 2nd from apparent natural causes
Gregory Schlundt, 50, ADC #054406, died October 3rd from apparent natural causes
Kevin Wirts, 45, ADC #258690, died October 7th from apparent natural causes
Rusty Anderson, 42, ADC #222642, died October 9th from apparent natural causes
Kenneth Gifford, 48, ADC #128657, died October 9th from apparent natural causes
Michael Melendez, 52, ADC #102559, died October 10th from apparent natural causes
Emmanuel Arline, 28, ADC #198483, died October 18th from apparent natural causes
Steven Ensslin, 40, ADC #090119, died October 19th from unknown causes.
Roosevelt Foster, 68, ADC #051942, died October 19th from apparent natural causes
Todd Hoke, 22, ADC #253951, died October 21 from an apparent suicide
Robert Maxwell, 46, ADC #065789, died October 23rd from apparent natural causes
Woody Trisky, 75, ADC #165447, died October 24th from apparent natural causes
Avtar Sidhu, 51, ADC #278273, died October 28th from apparent natural causes

ASPC-Eyman Death in Custody: Raymundo Morin, 38, Suicide.

This tormented man's murder victim was his father, sadly - my condolences to the whole family for the ordeal you've been through over the years. May you all find some peace. 

 I see that he was charged with arson numerous times; I understand that's an unusually common method of killing oneself in prison. He was also apparently assaultive towards staff, though the disciplinary record doesn't ever tell the whole story. It's possible he had some very good reasoning for this, too, but very seldom does a man who is not being influenced by delusions and hallucinations tattoo an inverted 5-point star on his forehead. I think this man was likely seriously mentally ill, and he was being held in solitary confinement because he was considered to be so dangerous. That's where most suicides take place.

In any case, there have been a rash of suicides under the watch of Corizon's mental health staff. So, if anyone knows anything about exactly how Raymundo died or what may have preceeded it, please get in touch with me at or 480-580-6807.

Saturday, November 23, 2013

Keifer's Prosecutorial Misconduct Series - The Gray Areas of Courtroom Conduct (AZ Republic)

Michael Kiefer at the Arizona Republic did an incredible job last month covering the issue of prosecutorial misconduct in Arizona. I'm re-publishing the entire series here. It really should be an award-winner - taking on this state's prosecutors takes courage.

One victim of the criminal justice system is Courtney Bisbee, sentenced to 11 years in prison after being falsely accused of molesting a 14 year old boy. That's boy's older brtoher, one of Courtney's accusers, has since recanted and started a petition on - please go there to support it. 

 courtney with daughter taylor lee, 
when mom was still free...

Please also contact the Maricopa County Attorney's office to ask why the witness' affidavit that he committed perjury to imprison her hasn't resulted in a re-examination of Courtney's prosecution, or an investigation into the crimes committed by those who conspired to use the justice system deprive her of her freedom and family.  We' re just asking him to do the right thing and re-open her case due to new evidence. The man to ask that of is:

Bill Montgomery
Marciopa County Attorney
301 W Jefferson St, 
Phoenix, AZ 85003
(602) 506-3411


The Gray Areas of Courtroom Conduct: Prosecutorial misconduct alleged in half of capital cases (PT 1 of 4)

By Michael Kiefer
The AZ Republic |
Mon Oct 28, 2013 11:09 AM

Updated on Nov. 15, 2013: This story was corrected to indicate that there were 17, not 18, findings of misconduct or other inappropriate behavior among the 82 death-penalty cases that underwent direct review by the Arizona Supreme Court from 2002 to the present.

Noel Levy was Arizona Prosecutor of the Year in 1990 when he convinced a jury to convict Debra Milke of first-degree murder for allegedly helping to plan the murder of her 4-year-old son.

A year later, he convinced a judge to send her to death row.

It was a scandalous case: Prosecutors charged that in December 1989, Milke asked her roommate and erstwhile suitor to kill the child.

The roommate and a friend told the boy he was going to the mall to see Santa Claus. Instead, they took him to the desert in northwest Phoenix and shot him in the head.

But neither man would agree to testify against Milke, and the state’s case depended on a supposed confession Milke made to a Phoenix police detective.

Milke denied confessing.

The detective had not recorded the interview, and there were no witnesses to the confession.

When Milke’s defense attorneys tried to obtain the detective’s personnel record to show that he was an unreliable witness with what a federal court called a “history of misconduct, court orders and disciplinary action,” the state got the judge to quash the subpoena.

“I really thought the detective was a straight shooter, and I had no idea about all the stuff that allegedly came out,” Levy recently told The Arizona Republic.

But in March of this year, after Milke, now 49, had spent nearly 24 years in custody, the 9th U.S. Circuit Court of Appeals threw out her conviction and sentence because of the state’s failure to turn over the detective’s personnel record so that Milke’s defense team could challenge the questionable confession.

The 9th Circuit put the onus on the prosecution.

“(T)he Constitution requires a fair trial,” the ruling said, “and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence.”

The 9th Circuit judges ordered that Milke be retried within 90 days or be released.

The chief circuit judge referred the case to the U.S. Attorney General’s Office to investigate civil-rights infringements. Under the 9th Circuit order, prosecutors must allow the detective’s personnel record into evidence if they use the contested confession.

Prosecutors are responsible for the testimony of the law-enforcement officers investigating their cases. Cops and prosecutors are the good guys. They put criminals in prison, sometimes on death row. Juries tend to believe them when they say someone is guilty. They don’t expect them to exaggerate or withhold evidence. They don’t expect their witnesses to present false testimony.

Yet The Arizona Republic found that, when the stakes are highest — when a trial involves a possible death sentence — that’s exactly what can happen.

In half of all capital cases in Arizona since 2002, prosecutorial misconduct was alleged by appellate attorneys. Those allegations ranged in seriousness from being over emotional to encouraging perjury.

Nearly half those allegations were validated by the Arizona Supreme Court.

Only two death sentences were thrown out — one for a prosecutor’s tactics that were considered overreaching but not actual misconduct because a judge had allowed him to do it.

Two prosecutors were punished, one with disbarment, the other with a short suspension.

There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct.

In fact, they are often congratulated.

Since 1990, six different prosecutors who were named prosecutor of the year by the Arizona Prosecuting Attorneys Advisory Committee also were later found by appeals courts to have engaged in misconduct or inappropriate behavior during death-penalty trials, according to The Republic’s examination of court documents.

And when prosecutors push the limits during criminal trials, whether crossing the line into misconduct or just walking up to it, there are risks: Convictions like Milke’s get overturned, even if it takes 24 years, and innocent people, like Ray Krone, go to prison.

In 1992, Levy helped send Krone to death row for a murder he did not commit.

Krone’s conviction and death sentence were thrown out three years later because the court had allowed Levy to present a videotape about matching bite marks into evidence that the defense had not had time to review.

Krone was dubbed the “Snaggletooth Killer” because of his twisted front teeth, and Levy found experts who said that those teeth matched bites on the victim’s breast and neck.

“The State’s discovery violation related to critical evidence in the case against the accused,” the Arizona Supreme Court ruled when it tossed the case.

“Discovery” refers to evidence that the opposing attorneys are supposed to make available to the other side before trial.

At retrial, Levy got another first-degree murder conviction for Krone, though at the second trial Krone was sentenced to life in prison, where he spent another seven years.

In 2002, Krone was exonerated by a true DNA match; another man was convicted of the murder.

“It never came out that one expert said it (the bite mark) wasn’t a match,” Krone told The Republic.

There were footprints that didn’t match, DNA that was sketchy.

And, as Krone said, other evidence was disregarded: an eyewitness account about a man seen near the crime scene who turned out to be the real killer, for example.

Krone sued Maricopa County and the city of Phoenix for his conviction and settled for more than $4 million.

Levy retired from the Maricopa County Attorney’s Office in 2009 for medical reasons while in the middle of another capital murder trial with accusations of prosecutorial misconduct.

That was the trial of Marjorie Orbin, who was charged with killing her husband and cutting his body into pieces, one of which was found in a giant plastic storage tub left in a desert lot in north Phoenix.

During Orbin’s trial, Levy was twice accused of misconduct by Orbin’s defense attorneys.

The first allegation was for denying Levy had spoken at the sentencing hearing of a jailhouse snitch who testified against Orbin, when he had.

Then, Levy was accused of threatening another snitch who had recanted her story; during a break in her testimony, while the judge and the jury were out of the courtroom, he asked her and her attorney if they knew the maximum penalty for perjury, according to appeals court records.

Levy told the court that he was only “kibitzing” with the witness’ attorney and not actually speaking to the witness herself.

The judge made a special instruction to the jury as a remedy, essentially telling them what had happened, and denied the motions for misconduct.

Levy was stricken ill before the trial ended and another prosecutor took over.

Orbin was found guilty, but the jury did not impose the death sentence.

There were no repercussions for Levy in that case, just as there were none in the Krone or Milke cases.

The Maricopa County Attorney’s Office refused to turn over his personnel file to The Republic, despite a request under the state’s public-records laws, saying it was in “the best interests of justice.”

“I just did my job, and I did it ethically,” Levy said.

“I’m fully aware of my ethical obligation to present evidence. It’s up to the jury to make a decision.”

As for how he feels now that a man spent 10 years in prison because of one of those jury decisions, Levy answered, “I don’t look back and judge myself to say I did something wrong to Ray Krone.

“Did I commit some kind of sin? Should I go to confession and confess to you?”

Prosecutors, not judges, not police, determine what, if any, charges to file, and they obtain indictments from the grand jury.

They, more than a jury, determine whether a defendant acted in self-defense.

They have enormous discretion over how the case unfolds, and judges grant them great latitude in their arguments.

“Prosecutors wield an enormous amount of power, including the ability to seek someone’s death,” said former Maricopa County Attorney Rick Romley.

“Considering the magnitude of this power, prosecutors have an obligation to exercise good judgment, and they must temper their powers with wisdom.

Winning at all costs should play no role in being a prosecutor.

Then and only then, will justice be ensured.”

But that doesn’t necessarily happen, and Romley’s 16-year tenure as county attorney was not free of allegations of misconduct by his line prosecutors in capital cases: Krone’s and Milke’s, for example.

The way the justice system really works is that if you are charged with a crime, you are likely to be found guilty of something.

In Maricopa County Superior Court, for example, of 2,700 felony cases terminated in July of this year, 1,706 ended in plea agreements, according to sources.

Only 2 percent of felony cases went to trial. Of the 65 trials that ended that same month, 59 ended in guilty verdicts, four in mistrial and two in acquittals.

“You indicted somebody, now you’ve got to win,” said defense attorney and former Watergate prosecutor Larry Hammond.

“Prosecutors really don’t take seriously the ministry of justice,” Hammond said. “They see themselves as adversaries.”

And they often fight their battles in the gray areas of the law.

On a recent afternoon, a Maricopa County Superior Court judge was talking about prosecutors.

She drew a line on the table with her finger and then placed an eating utensil there to mark the line.

“That’s misconduct,” said the judge, who asked that her name not be used.

Judges are loath to comment on cases for ethical reasons — and because they need to remain impartial to the attorneys who come before them.

Then she placed another utensil an inch away and parallel to the first on the table.

“That’s reversible error,” she said, referring to the level of misconduct that can get a sentence or conviction thrown out.

She put her finger in the space between the utensils and said, “That’s where a lot of prosecutors operate.”

Maricopa County Attorney Bill Montgomery had a quick counter.

“If courts are not enforcing the Rules of Professional Responsibility as they pertain to the conduct of defense attorneys and prosecutors, they are then responsible for what goes on in court,” he said. “However, mere differences of opinion as to how a case should be tried cannot be the standard either.”

As in any profession, there are tricks of the prosecutorial trade, ways to sway a jury without crossing the line.

You ask compound questions and then demand yes or no answers, for example. When the witness can’t answer, you accuse him of being argumentative. When the defense attorney is making a good case, you might accuse her of unethical conduct. You make objections in the same way football coaches call timeouts to slow a drive to the end zone.

And sex not only sells, it convicts.

“A good way to turn a questionable capital case into a definite capital case is to inject the sex component,” said Tucson attorney Rick Lougee, “very often with little or no proof of the allegation.”

You might also drag your feet on disclosing evidence and witness lists.

“Every piece of evidence is a fight, even if it doesn’t matter to them,” said Alan Tavassoli of the Maricopa County Public Defender’s Office.

When does trickery become misconduct?

The most frequently cited instances in appeals are withholding evidence that could aid the defendant, presenting false evidence, excluding jurors for racial reasons, making over-the-top statements, letting slip information that has deliberately been kept from the jury and disobeying a court order.

There have been few studies of prosecutorial misconduct.

The cases are hard to identify, because they are simply not tracked in court databases.

Instead, researchers have to rely on prominent cases memorialized in case law or anecdotal information.

According to a Pulitzer Prize-winning study by Ken Armstrong and Maurice Possley at The Chicago Tribune, between 1963 and 1999, at least 381 homicide convictions nationwide were thrown out for those infractions, including 67 where the defendant had been sentenced to death.

And according to The Tribune, though the appellate courts frequently excoriated the prosecutors’ actions, only five were punished, but not by any state lawyer disciplinary agency.

More frequently, The Tribune reporters wrote, the offending prosecutors were rewarded for getting the convictions.

A similar study conducted in 2010 by Possley and Santa Clara University law professor Kathleen Ridolfi on behalf of the Northern California Innocence Project identified 707 instances of prosecutorial misconduct between 1997 and 2009 in California courts.

But only 159 of those cases resulted in a mistrial or a reversed conviction or sentence.

The study found that prosecutors were disciplined in only 1 percent of those cases.

Ridolfi and Possley also took a look at Arizona and found 20 state and federal cases between 2004 and 2008 in which prosecutors were found to have committed misconduct.

Only five of the convictions were reversed. No prosecutors were disciplined.

In Arizona, all death sentences are subject to a mandatory “direct” appeal to the Arizona Supreme Court.

The Arizona Republic reviewed all direct appeals of death sentences issued by the court between 2002 and the present.

Among those 82 direct appeals, there were 42 in which the defendants alleged prosecutorial misbehavior or outright misconduct, 33 of them from Maricopa County, which, as the largest county, has the busiest Superior Court.

The Supreme Court justices found that impropriety or misconduct had occurred in 17 of those 42 cases.

But only two were reversed and remanded because of the behavior (in one case characterized only as overreaching). Two prosecutors were disciplined. The offenses varied in seriousness from rolling eyes and sarcasm to introducing false testimony and failing to disclose evidence that might have helped the defendant.

But, overwhelmingly, even when misconduct was found, the high court determined that it was “harmless error,” the defendant would have been convicted anyway, or the judge had cured the problem by making a jury instruction.

Some of the most egregious instances do not show up in The Republic’s study because the misconduct triggered a mistrial or caused the prosecution to offer a sweetheart plea deal; for instance, when a prosecutor had improper contact with a disgruntled member of the defense team or when it appeared as if the state had been listening in on a defendant’s jail calls from his attorney.

According to case law, in order to declare a mistrial for prosecutorial misconduct, a trial must be “permeated” with bad behavior on the part of the prosecutor that “so infects the trial with unfairness as to make the resulting conviction a denial of due process.”

Judges are reluctant to risk such drastic measures.

If a judge or appellate court were to reverse a case because of misconduct, the defense could claim it amounts to double jeopardy, making it impossible to retry the suspect.

Prosecutors are allowed great latitude during closing arguments, the justices wrote over and over in the death-sentence direct appeals.

Or because a defense attorney didn’t object at the time of the alleged infraction, the defendant forfeited the option of appellate scrutiny.

“There are no consequences,” said Susan Corey of the Office of the Legal Advocate, one of the county’s three indigent defense agencies. “There’s absolutely no repercussion.”

The majority of attorneys disciplined by the state Bar are attorneys who handle money: divorce attorneys, probate attorneys, civil attorneys.

More defense attorneys than prosecutors are referred to the Bar, partly because the County Attorney’s Office has an ethics committee.

It was established by former Maricopa County Attorney Romley.

His successor, Andrew Thomas, focused on attacking defense attorneys.

Thomas was later disbarred.

Montgomery said the ethics committee “only looked at possible referrals (to the disciplinary agencies) of judges and defense attorneys.”

He said that it now looks at prosecutors as well, though he would not reveal any details or if anyone had been referred.

“Sometimes defense attorneys are hesitant to file Bar complaints against prosecutors because they’re afraid for their next case,” said John Canby from the Maricopa County Office of the Legal Defender, another of the three county defense agencies. “Playing nice and getting a good plea is usually the way to go.”

“Lawyers in general don’t like filing Bar charges,” said Karen Clark, who represents other attorneys charged with ethical violations and has served as a prosecutor for the Bar.

“Nobody likes a rat,” Clark said.

Filing a complaint, in fact, can have more repercussions for a defense attorney than unethical conduct has for prosecutors, as Rick Lougee discovered when he referred a prominent Pima County prosecutor named Ken Peasley to the state Bar.

Peasley was Arizona Prosecutor of the Year in 1994, the year after he got death penalties imposed against two men and a teenager charged with murdering three people in a South Tucson mom-and-pop store called the El Grande Market.

During his career, Peasley prosecuted 140 murder cases, about 60 of them capital cases. He was a death-penalty machine, charming, forceful, well-respected — by judges and lawyers alike.

Except that he cheated.

“Prosecutors like Peasley have learned that you try people, not facts,” Lougee said.

They go after the defense attorneys, the witnesses. They convince the jury that regardless of the facts, the defendant is a bad person and must be guilty of something.

Peasley got all three of the El Grande Market defendants sent to death row, largely on the testimony of an informant.

But Peasley misrepresented the informant’s knowledge, claiming that police knew nothing of the defendants until the informant brought them up.

In fact, police were already aware of them.

Nonetheless, Peasley lied to the judge and the jury and encouraged a witness to commit perjury.

Two of the three convicted murderers were granted a new trial because the jury foreman in their joint trial wavered on whether he supported the verdict when the jurors were polled. The two defendants granted retrials were tried separately the next time.

Peasley brought in the same perjured testimony during the retrials.

One of the defendants was sent back to death row.

Lougee got the other defendant acquitted in 1997, but he had figured out the deception.

He filed his Bar charge that Peasley conspired to present false testimony and had repeated the perjury in the retrials. The complaint made no difference at first, and Peasley was promoted shortly after the complaint was filed.

He was named Prosecutor of the Year again in 1996.

Judges rallied around him. He traveled the state to train other prosecutors. He won national awards.

Lougee said he was shunned by the legal community for having made the accusation.

But the state Bar took the complaint and passed the investigation to Karen Clark.

It took Clark seven years to work out the case, but it ended, in 2004, with Peasley being disbarred by the Arizona Supreme Court.

He has since died.

After his disbarment, the death penalty from the retrial was thrown out because of Peasley’s behavior. The third defendant remains in prison, though his death sentence was commuted to life in prison when the U.S. Supreme Court ruled that killers cannot be executed for murders they committed before the age of 18.

“Ken Peasley corrupted the system for 15 years,” Lougee said. “That puts the system at risk for more than just my clients.”

The Gray Area of Courtroom Conduct: Prosecutors under scrutiny are seldom disciplined (PT2 of 4)

By Michael Kiefer
The Republic |
Mon Oct 28, 2013 11:39 AM

Updated on Nov. 15, 2013: This story was corrected to indicate that there were 17, not 18, findings of misconduct or other inappropriate behavior among the 82 death-penalty cases that underwent direct review by the Arizona Supreme Court from 2002 to the present.

Richard Wintory was Arizona Prosecutor of the Year in 2007. Wintory had spent 20 years as an assistant district attorney in Oklahoma, another seven in the Pima County Attorney’s Office, and by 2010 had moved on to the Arizona Attorney General’s Office, where he continued to try criminal cases, especially death-penalty cases.

Now he is chief deputy in the Pinal County Attorney’s Office.

He is also the focus of an investigation by the State Bar of Arizona because a Pima County Superior Court judge referred him to the State Bar of Arizona for improper contact with a member of a murder suspect’s defense team.

Prosecutors are frequently accused of misconduct during criminal cases, and even if a trial judge or a court of appeals agrees that they acted badly, it rarely affects the conviction or sentence of the trial defendants.

Wintory calls himself an “impassioned” attorney; others might say he pushes the envelope.

“In the 30 years I’ve been a prosecutor, I’ve had many people file complaints and lawsuits against me, but I’ve never been disciplined,” he said.

In Arizona, prosecutor misconduct is alleged in half of all capital cases that end in death sentences.

Half the time, the Arizona Supreme Court agrees that misconduct occurred in those instances, but it rarely throws out a conviction or sentence because of it.

The Arizona Republic reviewed all of the Arizona Supreme Court opinions on death sentences going back to 2002.

Of 82 cases statewide, prosecutorial misconduct was alleged on appeal by defense attorneys in 42 and the court found improprieties or outright misconduct in 17 instances. But only two of those death sentences were reversed because of the improprieties, and only two prosecutors were disciplined.

The offenses varied in seriousness from excessive sarcasm and vouching for the sincerity of witnesses to introducing false testimony and failing to disclose evidence that might have helped the defendant.

But overwhelmingly, even when misconduct was found, the high court determined that it was “harmless error.”

The most serious examples did not appear in those cases because the misconduct caused a mistrial or the prosecution offered a favorable plea agreement to avoid mistrial, as in Wintory’s case.

It is rare for prosecutors to be referred to the Bar for misconduct, let alone be disciplined by the Bar or sanctioned by trial judges. And whether Wintory will be disciplined remains to be seen.

Wintory had a history of allegations of prosecutorial misconduct in death-penalty cases before he came to Arizona. One death penalty he obtained in Oklahoma was thrown out because of Wintory’s closing argument, which included “yelling and pointing at the defendant as he addressed him directly,” according to a ruling by the Oklahoma Court of Criminal Appeals.

“This Court finds that the prosecutor in this case committed serious and potentially prejudicial misconduct,” the opinion went on to say.

Wintory says he learned from the experience.

“Since that trial, I don’t point at defendants. I don’t do closings like that anymore,” he said. “The reason why is you don’t want to put (the victim’s) family through those kinds of cases.”

In 2010, while at the Pima County Attorney’s Office, Wintory got an indictment against Darren Goldin, who was accused of hiring a hit man to kill a fellow drug dealer named Kevin Estep in March 2000.

Goldin, the triggerman and a third accomplice had already been convicted of another drug-deal hit in Maricopa County. Goldin was sentenced to 16 years in prison on his conviction of second-degree murder.

Wintory changed jobs before the case went to trial, but he took it with him to the Arizona Attorney General’s Office, where he worked out of the Tucson office. He sought the death penalty in the Pima County case.

Capital cases require that defense attorneys find mitigating evidence that may convince a jury to spare the defendant’s life. Goldin was adopted, so his defense team hired a “confidential intermediary” to track down Goldin’s birth mother.

She found the mother and got her to tentatively agree to cooperate in Goldin’s case.

But then the intermediary got into a disagreement with the defense attorneys over their decision not to tell the birth mother that Goldin was in prison, according to the state Bar investigative file.

The intermediary withdrew from the case, and shortly after, the birth mother decided that she did not want to cooperate after all.

Then the intermediary called Wintory and left a message.

It is highly improper for prosecutors to have secret contact with members of the defense team.

But Wintory called her back — at least eight times, according to the record — even after the judge in the case had told him to cease contact with her.

Wintory’s supervisors questioned the number of calls between Wintory and the defense-team member, but Wintory was allegedly evasive. He claimed he had not learned anything about defense strategy, but he did know that the birth mother had also been adopted and knew nothing about her own family history that could help in the case.

In May 2012, Wintory’s superiors at the Attorney General’s Office took him off the case. That August, the office withdrew its intent to seek the death penalty.

With the case in a tailspin, Goldin was offered a plea agreement to second-degree murder and a prison sentence of 11 years, five years less than the presumptive sentence for that crime.

The Bar investigative file says the death notice was dropped primarily because of case law from another Arizona county, but that the “apparent misconduct” figured into the decision to offer a reduced sentence.

“Whatever I did or didn’t do had no influence on the plea,” Wintory told The Republic.

When Pima County Superior Court Judge Paul Tang accepted the plea, he noted the “apparent misconduct allegedly engaged in by the prosecutor.”

At Goldin’s sentencing, Tang told the defendant how lucky he was to have reaped the benefit of Wintory’s conduct; then Tang noted that he would report Wintory to the Arizona State Bar.

Earlier this month, the Bar filed its formal complaint against Wintory, charging him with violating three ethical rules: knowingly making a false statement of fact or law or failing to correct a false statement; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and engaging in conduct prejudicial to the administration of justice. A

Bar spokesman said a disciplinary hearing will be scheduled, unless Wintory reaches a settlement.

“I’m confident that if we get before a hearing panel and lay the facts out, they will see I had no intention to mislead anyone on this matter,” Wintory said.

The disciplinary process is not rapid.

It took seven years to disbar Ken Peasley, a Pima County prosecutor who was caught presenting testimony he knew to be false.

Disbarment, however, is extreme, and Wintory could be punished with lesser sanctions, such as a suspension.

In 2004, Peasley was the first American prosecutor to be disbarred because of his conduct in a death-penalty case, according to The New Yorker magazine.

Arizona has had two more prosecutors disbarred for ethical violations since then.

Former Maricopa County Attorney Andrew Thomas and one of his deputies, Lisa Aubuchon, were disbarred in April 2012 for filing criminal charges and a civil racketeering lawsuit against Superior Court judges and Maricopa County officials to further Thomas’ political goals. Two other deputies received lesser sanctions for their participation in the affair.

“The only people that got anything out of his ‘reign of error’ were judges and supervisors,” defense attorney Susan Corey said.

Several of Thomas and Aubuchon’s targets received vindication — and tidy court settlements.

Thomas and Aubuchon were not being charged criminally for their actions — prosecutors are prosecuted even less frequently than they are disbarred — but it took three years for the system to rein them in and cost the county more than $5 million to settle lawsuits from judges and officials and millions more in legal fees.

“It’s a culture that’s set from the top,” said Karen Clark, an ethics expert who prosecuted Peasley. “If you have a bad apple prosecutor at the bottom, it’s not tolerated. But when it comes from the top, it’s rewarded.”

During Peasley’s tenure, there were two other Pima County prosecutors who came under scrutiny by the state Bar; one of them was suspended.

Maricopa County Attorney Bill Montgomery says he has beefed up prosecutor training to avoid misconduct and maintains an ethics committee to look into the actions of prosecutors, judges and defense attorneys alike.

“I’m trying to create an environment where prosecutors hold each other accountable,” he said.

But Montgomery admitted he was not aware of many of the instances of misconduct or improprities that are described over the course of this series, even those that occurred while he has been in office.

That information rests with the middle-management supervisors, he said.

Montgomery has spent much time this year on statewide issues, lobbying against the medical-marijuana law passed by voters, for instance, and defending an Arizona abortion law found unconstitutional by the 9th U.S. Circuit Court of Appeals. He said he does not weigh in on how prosecutors try their cases.

“The attorneys are trying the case, I’m not going to step in,” he said. “They’re on their own.” And if they need to be put in their place, “that’s the job of the judge. It’s the job of the defense attorney to object,” he said.

Even when prosecutors do get called before the Bar, most sanctions are minor.

--Thomas Zawada, a contemporary of Peasley and a fellow prosecutorial superstar in the Pima County Attorney’s Office, was disciplined in 2004 for misconduct during a murder trial 10 years earlier.

According to an Arizona Supreme Court opinion, the state Bar investigation into his conduct found that Zawada’s “misconduct included (a) appeals to fear by the jury if (the defendant) was not convicted, (b) disrespect for and prejudice against mental health experts that led to harassment and insults during cross-examination, and (c) improper argument to the jury.”

The Supreme Court justices thought that Zawada’s behavior was so egregious that it threw out the murder conviction and attached double jeopardy so that the alleged killer could not be retried.

As punishment, the state Bar hearing officer recommended that Zawada be censured, put on probation for six months and told to seek continuing education in dealing with psychological testimony.

Instead, the high court suspended Zawada from practicing law for six months and one day, meaning that he would have to reapply to the Bar afterward. According to the state Bar website, Zawada has never been reinstated.

--Deputy Maricopa County Attorney Ted Duffy was suspended from practicing law for 30 days in 2009 after being referred to the Bar by a Superior Court judge for repeatedly disobeying a judge’s orders in a capital murder case to not mention evidence that had been precluded from trial, including the defendant’s prior convictions.

The trial ended in a hung jury, and the defendant was acquitted when Duffy took him back to trial. But most findings of misconduct are not reported to the state Bar and have little or no consequence to the prosecutor involved.

Even when they make findings of prosecutorial misconduct, judges do not necessarily report the offenders to the Bar, which would then investigate the offenses in light of the state’s rules of attorney ethics and determine whether to set to disciplinary hearings.

Jonathan Mena Cobian, who goes by the name Alex, was at his mother’s house in Phoenix when a group of gangsters came looking for his half-brother John Mitchell Mena to take him to task for trying to leave their gang.

According to court filings, they asked Alex to step outside to help them with a car problem, then attacked him, and when Alex knocked one to the ground, they told him that they would come back to kill him.

Another brother had called 911; Alex talked to the dispatcher about the attack and the police officer who came to the house advised Alex that he would be within his rights to carry a firearm in case the gangsters returned.

Alex went to get his guns, picked up John at the mall and returned to their mother’s house.

According to motions filed by Alex’s defense attorneys, the gangsters pulled into the driveway behind him. Alex told them to leave, and when they advanced on him and John, the brothers shot two of them dead.

Someone inside the house called 911 again.

Alex and John were charged with first-degree murder.

Court records show that the prosecutor, Deputy County Attorney Eric Basta, did not want to turn over evidence of the victims’ criminal past, a matter brought to the Arizona Court of Appeals.

The case was remanded to the grand jury twice, and Superior Court Judge George Foster ordered Basta to play the potentially exculpatory 911 tapes for the grand jury.

Basta had already been told to do so by another judge who had the case before Foster. When Basta refused, Foster threw out the indictment. He wrote in his ruling that Basta had denied due process to the two defendants.

“The court further finds prosecutorial misconduct and that the appropriate remedy is dismissal without prejudice of the indictment as to both defendants,” Foster wrote.

Then he sealed the order from the public record.

When asked why he didn’t refer Basta to the Bar, Foster told The Republic that he felt that dismissing the indictment was sanction enough.

Alex and John were subsequently reindicted on second-degree murder and aggravated assault charges, respectively, and their case is expected to go to trial this fall.

Bill Montgomery said he was not aware of the case or of the finding of misconduct.

Basta declined a request for an interview.

 The Gray Area of Courtroom Conduct: Objections raised to Juan Martinez's conduct in Jodi Arias trial (PT3 of 4)

By Michael Kiefer
The AZ Republic |
Tue Oct 29, 2013 12:24 AM

Juan Martinez was Arizona Prosecutor of the Year in 1999, more than a decade before he became a media darling with his performance in the Jodi Arias murder trial.

This year, Martinez convinced a jury to find Arias guilty of first-degree murder, but the jurors could not reach consensus on whether to sentence her to death or life, and Arias likely faces a new trial to make that decision.

Martinez helped send seven other killers to death row since he was hired at the Maricopa County Attorney’s Office in 1988.

He was accused by defense attorneys of prosecutorial misconduct in all but one of those cases; the Arizona Supreme Court characterized his actions as constituting misconduct in one of them, and cited numerous instances of “improper” behavior in another, but neither rose to the level where the justices felt they needed to overturn the cases. Allegations of misconduct by Martinez in the second case and at least two others are pending in state and federal courts.

It is not uncommon for defense attorneys to allege misconduct against prosecutors. A study by The Arizona Republic determined that it was alleged in about half of all death-penalty cases since 2002, and validated in nearly one-quarter of them.

But it is rare for Supreme Court justices to call out a prosecutor’s conduct in open court.

One day in mid-2010, the Arizona Supreme Court was on the bench as lawyers presented arguments during the direct appeal of a first-degree murder conviction and death sentence for a man named Mike Gallardo, who killed a teenager during a Phoenix burglary in 2005.

Transcripts show Justice Andrew Hurwitz turned to the attorney representing the Arizona Attorney General’s Office, the prosecutorial agency that handles death-penalty appeals.

“Can I ask you a question about something that nobody’s discussed so far?” he asked. “The conduct of the trial prosecutor. It seems to me that at least on several occasions, and by and large the objections were sustained, that the trial prosecutor either ignored rulings by the trial judge or asked questions that the trial judges once ruled improper and then rephrased the question in another improper way. ... Short of reversing a conviction, how is it that we can ... stop inappropriate conduct?”

The assistant attorney general struggled to answer.

Justice Michael Ryan then stepped into the discussion.

“Well, this prosecutor I recollect from several cases,” Ryan said. “This same prosecutor has been accused of fairly serious misconduct, but ultimately we decided it did not rise to the level of requiring a reversal,” Ryan said. “There’s something about this prosecutor, Mr. Martinez.”

There had been multiple allegations of prosecutorial misconduct against Martinez in Gallardo’s appeal. Ultimately, in its written opinion, the court determined that Martinez had repeatedly made improper statements about the defendant. During the oral argument before the Supreme Court, the justices fixed on a question that Martinez asked three times, even though the trial judge in the case had sustained a defense attorney’s objections to the question.

But in the end, the justices ruled that Martinez’s behavior still did not “suggest pervasive prosecutorial misconduct that deprived (the defendant) of a fair trial.”

And, as the justices noted, it was not the first time that Martinez had walked away unscathed.

“It’s his MO,” said Deputy Maricopa County Public Defender Tennie Martin when asked about trying cases against Martinez. “He’s kind of Teflon.”

Retired Maricopa County Superior Court Judge Kenneth Fields, himself a former federal prosecutor, said, “You’re at war, almost nuclear war, the minute you come up against him.”

Fields was one of several judges who sued Maricopa County and received settlements after being falsely targeted by the anti-corruption crusade of disbarred former Maricopa County Attorney Andrew Thomas and Sheriff Joe Arpaio.

Martinez declined to talk to The Republic for this story. The Maricopa County Attorney’s Office refused to turn over his personnel file despite a request made by The Republic under the state’s public-records law. The office said the denial was “due to the best interests of justice.”

The National District Attorneys Association honored Martinez with its “Home Run Hitter Award for Outstanding Prosecution” for 2013 because of the Arias murder trial and conviction.

The general public loved the trial, but Martinez’s live-streamed aggression in the courtroom, his pacing and arm-waving, his constant sarcasm raised concerns among legal pundits. Arias’ defense attorneys filed numerous motions for mistrial alleging prosecutorial misconduct. All were denied by the judge.

Maricopa County Attorney Bill Montgomery denounced the circus atmosphere in the courtroom, though he did not criticize his prosecutor.

“I do not believe the coverage of that trial furthered the understanding of the criminal-justice process,” Montgomery said. “I had no idea it was going to turn out like that.”

Not counting the allegations of misconduct during the Arias trial this spring, Martinez has been called out in at least two other cases this year.

The defense attorney in the Richard Chrisman trial, which ended in a hung jury on two counts last month, filed motions in January to protest Martinez’s failure to disclose an expert witness whom Martinez had retained a year and a half earlier. The judge ordered that the defense attorney be allowed to interview the tentative witness.

Then, during the penalty stage of the trial, the defense attorney asked for a mistrial on the grounds of misconduct because he thought Martinez was trying to shift the burden of proof from the state to the defendant. The judge called it “close to the line of burden shifting,” but let the trial go on.

Earlier this year, another attorney referred Martinez to the State Bar of Arizona after a dispute over whether he and the defense attorney had reached an agreement on preliminary court actions and for failing to file a pretrial statement.

According to state Bar investigative files, Martinez denied there had been an agreement but acknowledged he “unknowingly failed to comply” with the deadline for the pretrial statement. The Bar closed the case in June; it did not sanction Martinez, but sent him an “instructional comment” on filing documents “in a timely manner.”

Misconduct has to be “pervasive” for a judge to throw out a case or for the Supreme Court to throw out a conviction. It is rare for a prosecutor to be sanctioned by the court or disciplined on ethical grounds by the state Bar.

A study by The Arizona Republic found improper behavior by prosecutors was alleged in half of all death penalties reviewed by the Arizona Supreme Court since 2002. The high court found that prosecutorial impropriety or outright misconduct had indeed occurred in nearly half of those allegations, but only twice found it rose to a level where the conviction was overturned. But other instances of misconduct do not appear among those numbers because the misconduct caused a mistrial or encouraged prosecutors to offer a plea deal to a lesser sentence to avoid mistrial.

Former Deputy Maricopa County Attorney Noel Levy, who was Arizona Prosecutor of the Year in 1990, was never sanctioned, even though he helped put Debra Milke on death row that year based on a questionable confession. He and law enforcement were successful in blocking the defense attorney’s attempt to impeach the detective who said Milke confessed.

And then two years later, Levy helped put an innocent man on death row as well. Ray Krone spent 10 years in prison before he was exonerated by DNA. Milke’s conviction and death sentence were overturned in March of this year. Courts acknowledged prosecutorial lapses in both cases and overturned the verdicts and sentences.

Montgomery also refused to divulge Levy’s personnel file “due to the best interests of justice.”

Levy told The Republic: “I just did my job, and I did it ethically. I’m fully aware of my ethical obligation to present evidence. It’s up to the jury to make a decision.”

Sex and outrage often figure prominently in Martinez’s cases.

In 2004, Martinez convinced a jury to send Wendi Andriano to death row for murdering her husband in an especially cruel manner. She poisoned him, and when that didn’t work fast enough, she stabbed and beat him to death.

The Arias trial won Martinez international recognition, but it has been rife with allegations of misconduct.

Like Arias, Andriano claimed to be a victim of domestic abuse. On appeal, Andriano’s defense team argued that Martinez had unfairly prejudiced the jury because “he took every opportunity to infuse the trial with marginally relevant information about Andriano’s partying and man-chasing.” The Arizona Supreme Court pushed away the allegation, saying that closing arguments are not evidence and the jury would have known that because they had been so instructed.

During a second-degree murder trial in 2005, Martinez accused the defendant of covering up prior crimes that the judge had ordered withheld from the jury. Martinez revealed them anyway, which the Arizona Court of Appeals deemed improper. Then, during his rebuttal, Martinez repeatedly compared the defense attorney, who is Jewish, to Adolf Hitler and his “big lie.”

The trial judge told the jury to disregard the remarks but did not grant a defense request for a mistrial. The Appeals Court called the analogy “reprehensible” but did not overturn the case, because, “In recognition of the frequently emotional nature and sometimes rough and tumble quality of closing argument, attorneys, including prosecutors, are allowed wide latitude in their arguments to the jury.”

Also in 2005, Martinez obtained convictions and death sentences against Cory Morris, who killed five prostitutes in 2002 and 2003 and dumped their decomposing bodies in alleys. Martinez told the jury that Morris took them to the camper bus he parked behind his aunt’s house in the Garfield neighborhood of central Phoenix, strangled them during sex, and then continued to have sex with their bodies until they rotted and fell apart.

On appeal, Morris’ lawyers noted that Martinez and not the medical examiner had decided that Morris engaged in necrophilia. Once again, the Supreme Court justices wrote that prosecutors have “wide latitude.”

“While the evidence in this case does not compel the conclusion that Morris engaged in intercourse with the corpses of the victims, the record includes sufficient evidence to permit the prosecutor to make such an argument,” the justices wrote when affirming Morris’ death sentences. Furthermore, they pointed out, Morris’ trial attorney had not objected to the allegations during trial.

The high court did disapprove of Martinez singling out jurors in comments during his arguments, drawing comparisons to Morris and his victims, which it deemed misconduct. It found Martinez to have been inappropriate when at one point he took a jacket worn by one of the dead out of a plastic evidence bag for the jury’s “smelling pleasure.” The jacket filled the jury area with the smell of decomposition, but the justices said: “This single remark did not deprive Morris of a fair trial.”

Morris’ convictions and death sentences were upheld, but the allegations of necrophilia are being debated in Morris’ ongoing appeals. In its filings, the state reiterates the words of the Supreme Court that Martinez had “wide latitude” to deduce necrophilia from the facts at hand; the appeals judge felt there was room for argument and set an evidentiary hearing.

In 2009, Martinez tried Douglas Grant, who had been charged with first-degree murder in the drowning death of his wife, Faylene. It was another bizarre case.

Grant, a dietitian who worked with the Phoenix Suns, had divorced Faylene and was dating at least two other women. Faylene, who was a self-described Mormon mystic, asked Grant to repent and remarry her because she had visions that she would soon die, and she needed to have a husband to be admitted into heaven.

She also selected one of Grant’s interim girlfriends as a suitable mother to raise their children after her death, and she encouraged Grant to marry the woman when she was gone. Faylene wrote numerous letters to friends and relatives about her anticipated demise and filled her journals with her thoughts.

On Sept. 24, 2001, while on a second honeymoon with Grant to a sacred Mormon site in Utah, Faylene fell from a cliff. Her visions told her that would be the day she died, but instead, she survived with injuries that were painful but not life-threatening. A relative sent to Grant’s house shortly afterward found many of Faylene’s prized possessions laid out and tagged with Post-it notes telling who she wanted to have them after her death. Two days later, Faylene drowned in the bathtub while impaired by pain medication and sleeping pills. At first, the death was ruled an accident; then, four years later, Grant was arrested and charged with murder.

Grant was represented by Mel McDonald, a former Superior Court judge and a former U.S. attorney for the District of Arizona.

The prosecutorial high jinks, which McDonald chronicled in motions, began in the pretrial stage. Martinez had to be compelled to turn over Faylene’s letters and journals in which she happily proclaimed that she would soon die and go to heaven.

The court record shows that Martinez avowed that he had turned over all farewell letters from Faylene when he hadn’t. Martinez also denied having tape recordings of interviews with certain witnesses, though they eventually materialized. The judge ordered that the materials be turned over and threatened to dismiss the case “on the basis of ongoing discovery issues.”

In pretrial hearings, Martinez grilled Grant’s new wife and another former girlfriend about intimate details of their sex lives, down to whether they wore thong underwear or had performed oral sex in cars.

During his opening statements in the 2008-09 trial, Martinez claimed that Grant had lifted Faylene while she was unconscious and had placed her in the bathtub to drown her. In his closing arguments, he said Grant had her kneeling at the side of the tub and pushed her head underwater. He feigned surprise when a witness on the stand came up with a story of which McDonald had not been informed.

The courtroom interaction was vicious.

“Everything he does is attack,” McDonald said. “There’s a time to attack, but you don’t attack every witness on every point, every time. I couldn’t even ask a question without him objecting.”

Grant was portrayed throughout the trial as a sex-obsessed Lothario, and the jury told the media afterward that they had convicted him because he was a “scuzzbag.”

Martinez did not get a first-degree murder conviction, however. The jury found Grant guilty of manslaughter, and the judge sentenced him to only five years in prison. McDonald said he did not file appeals alleging misconduct to avoid the risk that Grant might be awarded a new trial and then be found guilty of a more serious murder charge.

“If you go in on a murder one and walk out with only five years in prison, you would have to be brain dead to file an appeal,” he said.

The Jodi Arias trial won Martinez international attention but, like other trials, it has been rife with allegations of misconduct.

Arias’ attorneys filed numerous motions to protest Martinez’s actions, not just in trial, but in the years of discovery and evidentiary hearings between the 2008 murder and the 2013 trial.

The two judges who handled the case over those four years repeatedly ordered Martinez to produce e-mails, photographs and social-media posts that fueled the salacious case. Martinez would repeatedly deny such materials existed. A month before the jury was picked, he was still fighting with defense attorneys over the whereabouts and contents of victim Travis Alexander’s computer. When Arias’ defense attorneys asked for more time to study the thousands of images in its drives, Martinez objected, saying that the defense had already had four years in which to analyze the computer.

Arias admitted that she killed Alexander and claimed that she shot him after he attacked her. For four years, police and prosecution maintained that Arias first shot Alexander and then stabbed him and slit his throat. But days before jury selection, Martinez changed the facts of the case, saying that Arias had shot Alexander last instead of first; Arias’ attorneys, Kirk Nurmi and Jennifer Willmott, protested that the rationale for seeking the death penalty had been based on the first theory.

They filed a motion for mistrial alleging prosecutorial misconduct when Martinez appeared on television, signing autographs and posing for photos with fans.

Martinez verbally attacked Arias and her witnessess. He painted Arias as a sexual predator. He asked compound questions and then accused witnesses of being non-responsive when they would not answer yes or no.

“I would not have let the cross-examinations go on for that long,” said Fields, the retired judge. “It was just badgering and bullying the witnesses in an attempt to ruin their credibility. It crossed the line.”

As video and transcripts later showed, many of the trial’s most contentious moments took place in the judge’s chambers or at the bench, out of earshot of the rest of the courtroom and the cameras. Etiquette is a given during court proceedings. Martinez was frequently insulting.

The first question he posed to Arias during cross-examination set the tone, when he displayed a photograph to the courtroom and described it to her as a “picture of you and your dumb sister.”

One day at the bench, as the attorneys debated whether to admit a statement about whether Alexander wanted to kill himself, transcripts show Martinez said, “But the thing is that if Ms. Willmott and I were married, I certainly would say, ‘I f---ing want to kill myself.’”

Willmott objected, and two days later at another bench conference, Martinez said to Willmott, “Well, then, maybe you ought to go back to law school.”

Nurmi asked Judge Sherry Stephens to step in, but she did not.

“In my view, that would have been a fine,” Fields said. “I probably would have reported him to the Bar. It shows his bias. It’s just inappropriate.”

But it didn’t matter. Martinez became a rock star. He got the conviction. Whether he ultimately gets a death sentence for Arias remains to be seen.

“All the young prosecutors want to be like Juan Martinez now,” said Alan Tavassoli, an attorney with the Maricopa County Public Defender’s Office. “He’s a role model. And so was Noel Levy.” 

The Gray Area of Courtroom Conduct: Can the system curb prosecutorial abuses? (Part 4 of 4)

By Michael Kiefer
The AZ Republic |
Tue Oct 29, 2013 10:19 PM

For three days, The Arizona Republic has examined prosecutor conduct and misconduct, citing cases in which prosecutors stepped over the line without suffering consequences to themselves or the convictions they win.

The question remains: What can be done about it?

Options already are in place.

When a prosecutor steps over the line, it’s up to the defense attorney to call it to the court’s attention, and it’s up to the judge to decide whether an offense has been committed and whether it affects the defendant’s right to a fair trial.

Yet, neither likes to do so.

Prosecutors are arguably the most powerful people in the courtroom: They file the charges and offer the plea agreements. They determine whether to seek the death penalty, and, given mandatory sentencing, predetermine the consequence of a guilty verdict.

Defense attorneys worry that if they cross a prosecutor, future clients could be treated more harshly the next time they face that prosecutor in court. Judges worry about prosecutors who use court rules to bypass those judges who rein them in. Both know that prosecutors are rarely sanctioned by the court or investigated by the State Bar of Arizona for ethical misconduct.

So overly aggressive prosecutors continue to have their way in the courtroom – as long as they win cases, experts say.

“It comes from this ‘end-justifies-the-means mentality,’’’ said Jon Sands, the federal public defender for Arizona. “We’ll do anything we can to bring someone to justice.”

Part of the problem of reining in prosecutorial misconduct is defining it.

When a defense attorney does something wrong while defending a criminal client, it’s called “ineffective assistance of counsel.”

When a judge does something wrong, it’s called “judicial error.”

But when it’s the prosecutor who is under scrutiny, it’s called “prosecutorial misconduct.” It’s a fuzzy concept rooted more in constitutional law than in rules of professional conduct: A “term of art,” according to the American Bar Association.

Republic file photo

Prosecutors are human and will make mistakes,” said Yavapai County Attorney Sheila Polk.

But what constitutes misconduct depends on a judge’s ruling. Even then, such rulings tend to blur the distinction among what is improper, “inartfully stated,” bad judgment or outright misconduct.

“The vast, vast majority of prosecutorial misconduct claims go to inadvertent slip-ups rather than calculated interference with the wheels of justice,” said Judge Peter Swann of the Arizona Court of Appeals.

It’s a view shared by defense attorneys and prosecutors as well.

In 2009, the American Bar Association recommended that states amend their rules of court procedure to create a new term of “prosecutor error” to force judges to determine the intent of the prosecutor.

“Prosecutors are human and will make mistakes,” said Yavapai County Attorney Sheila Polk, who is president of the Arizona Prosecuting Attorneys Advisory Committee.

“The judge needs to address it at the time, especially for a less experienced attorney. However, if an experienced attorney is playing with the rules and the judge knows it is deliberate (or has seen it before), then the court needs to address it. ... It simply cannot go unaddressed. That goes for defense attorneys as well as prosecutors.”

When an allegation of misconduct is made before or during trial, judges have to think long and hard about whether to dismiss a case or sanction a prosecutor.

That is the question facing Maricopa County Superior Court Judge Sally Duncan in the case of Jeffrey Martinson.

Martinson was found guilty of murdering his 5-year-old son, but in March 2012, before the jury could decide whether to impose the death penalty, his attorneys, Treasure VanDreumel and Mike Terribile, uncovered juror misconduct, and Duncan declared a mistrial.

Deputy Maricopa County Attorney Frankie Grimsman then filed multiple motions to have the judge and the defense team removed from the case, all of which were denied by Duncan and by the court’s then-presiding criminal judge, Douglas Rayes.

Grimsman also tried to dismiss the original indictment and reindict Martinson, this time without a notice to seek the death penalty, which intentionally or coincidentally, would result in a new judge and defense team. In the original indictment, Martinson had been charged with felony murder, meaning the child died during the commission of another crime, namely, child abuse. Grimsman was now alleging premeditated murder.

Duncan refused to dismiss the original indictment, and pointed out in a ruling that through the first trial, Grimsman had said that she did not have evidence to charge Martinson with premeditation, but had argued it anyway.

“The court further finds that the state either deliberately disregarded the court’s rulings or acted in a willfully blind manner,” Duncan ruled in October 2012.

Grimsman appealed Duncan’s ruling in the Martinson case to the Arizona Court of Appeals for her right to dismiss the original indictment, and won — sort of. The Court of Appeals reversed Duncan’s ruling, but gave Duncan the option to determine if the state attempted to dismiss the indictment improperly.

“The State has done nothing improper in seeking to re-indict this case,” Grimsman and another deputy county attorney wrote in a response to Terribile and VanDreumel’s motion to to dismiss the charges, alleging bad faith. “ Defendant has made numerous spurious assertions which have no basis in fact or reality.”

Terribile and VanDreumel then filed a motion to dismiss the case altogether, alleging prosecutorial misconduct for charging Martinson with felony murder and then trying him for premeditated murder. They argued the motion case to Duncan on Oct. 3.

Duncan took the case under advisement, and as of this writing, still has not ruled.

The County Attorney’s office declined to comment on the case because it is ongoing.

Karen Clark, a private attorney, not only defends lawyers against state Bar complaints, she prosecutes for alleged ethical lapses that could lead to disbarment. Clark, for example, prosecuted Deputy Pima County Attorney Ken Peasley, who was disbarred in 2004 for encouraging perjury during capital murder trials.

She says systems are in place to control courtroom conduct without putting bad guys back on the street.

“We are a self-regulating profession ... just because the other (checks and balances) aren’t working doesn’t mean you have to overturn convictions,” Clark said. “You get the other wheels working.”

Maricopa County Attorney Bill Montgomery said that he is “trying to create an environment where prosecutors hold each other accountable.”

Montgomery told The Republic that his office’s ethics committee, which historically has filed complaints against defense attorneys and judges, now also considers prosecutor ethics. But Montgomery’s office has not responded to a request for details about the committee made July 30 under the state’s public-records laws.

The request asked for the names of the people on the ethics committee and a list of judges, prosecutors and defense attorneys referred to the office ethics committee and a list of those whom the ethics committee referred to the state Bar.

Polk said there is communication in Yavapai County among judges, prosecutors and public defenders to identify bad actors before they cause damage.

But for a defense attorney to make a referral puts him or her in the crosshairs, according to David Euchner, the president of the Arizona Attorneys for Criminal Justice and an assistant public defender in Pima County.

“They’re afraid of the blowback they’ll get,” Euchner said.

To combat the threat of reprisal, his organization of defense attorneys has recently created a panel to gather information and file Bar complaints against rogue prosecutors. It is intended to mirror the ethics committee of the Maricopa County Attorney’s Office.

“That’s why we decided to put together our own panel to give attorneys a cover,” Euchner said, “so that a statewide association files the complaint, not the individual attorney.”

Judges worry about “blowback” as well.

“Once the prosecutors gained the ability to use charging decisions to shape sentences (due to mandatory sentencing), it was a huge power shift,” said Swann, the Appeals Court judge. “The Legislature empowers the prosecutors and defangs the judges.”

Of the approximately 40,000 felony cases filed each year in Maricopa County, most end in plea agreements. Only 2 percent go to trial, and most of those result in guilty verdicts. So by filing charges or offering plea agreements, the prosecutor is, in effect, also deciding the punishment.

Swann also took issue with prosecutors’ ability to make a “peremptory strike” against a judge they don’t want to appear before because of that judge’s courtroom practices. They are allowed one such strike without having to say why, and they use them to try to gain a tactical advantage in a case. If they want to strike a second judge, they must show cause.

“When judges who take steps to manage their courtrooms are subject to peremptory strikes, it diminishes their control over the courtroom. And it can serve to chill the bench,” Swann said.

Defense, prosecution and judges all agree that the final word on defining and curbing prosecutorial misconduct rests with judges.

“The bottom line — judges must report conduct,” Polk said. “To sit from afar and paint a broad brush against prosecutors does absolutely nothing to help us all achieve our high standards of justice and due process.”

Swann agreed.

“When a judge thinks a lawyer’s conduct is questionable, the lawyer should be referred,” he said.