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Amicus and Strike Force Activity

Jun 06, 2005

By Christopher Dupont

In order to support our members AACJ works diligently to ensure that our voice is heard as an organization on important issues that
affect all of us as attorneys, our support staffs and our clients. With the goals of protecting our members and promoting ordered
liberty, the volunteer attorneys on this committee have come forward to represent attorneys cited or threatened with contempt; our
attorneys have represented attorney staff in order to protect confidential communications and work product; we have entered amicus
briefs in several cases at both the Court of Appeals and the Arizona Supreme Court; and we have worked with public defender
organizations around the state, the Arizona Public Defender's Association, the National Association of Criminal Defense Lawyers and
Arizona Capital Representation Project in order to present a united voice on the front lines in the fight for criminal justice.

This brief is to update everyone on recent projects:

Published Amicus Opinions

A quick Westlaw search shows that during the history of AACJ, there have been six published opinions in which AACJ participated as
amicus; three of those were prior to 1994. There was also one reported decision in which our attorneys appeared pro bono on behalf
of individual members. The three decisions as amicus are as follows:

State ex rel. Romley v. Hauser, 209 Ariz. 539, 105 P.3d 1158 (2005). The Arizona Supreme Court held that, "Under plain language
of amended sentencing enhancement statute, prior felony conviction that fell outside other enhancement statute's definition of a
"historical prior felony conviction" could nonetheless be used for sentence enhancement purpose." (Thank you Gregory Parzych, who
submitted the brief on behalf of AACJ).

Derendal v. Griffith, 209 Ariz. 416, 104 P.3d 147 (2005). The Arizona Supreme Court held that, "the analysis of jury eligibility for
trials of misdemeanor offenses in Arizona requires a two step process. First, Article 2, Section 23 requires that a court determine
whether a statutory offense has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood. In
making that decision, the court should consider whether substantially similar elements comprise the common law offense and the
offense charged. If so, the inquiry concludes, and the defendant's right to a trial by jury is established.

If, however, the court finds no common law antecedent for which a jury trial was required, the court must analyze the seriousness of
the offense under Article 2, Section 24. Because this provision is Arizona's analog to the Sixth Amendment, we apply a modified
Blanton test. If the legislature has defined an offense as a misdemeanor punishable by no more than six months incarceration, we
presume that the offense is petty, and no jury right attaches. A defendant may rebut this presumption, however, by demonstrating
that the offense carries additional severe, direct, uniformly applied, statutory consequences that reflect the legislature's judgment that
the offense is serious. If a defendant makes that showing, Article 2, Section 24 guarantees a right to trial by jury. (Stephen Paul
Barnard submitted a brief on behalf of AACJ; Treasure van Druemel submitted a brief on behalf of City of Phoenix Public Defender; and
Kathleen Cary submitted a brief on behalf of Maricopa County Public Defender).

AACJ members David Derickson, Gary Kula and Darrow Sol, and Greg Parzych among others are actively researching common law
antecedents and aggressively litigating the right to jury trial for misdemeanor offenses.

State v. Brown, 209 Ariz. 200, 99 P.3d 15 (2004). The Arizona Supreme Court held that, "The State now concedes that this opinion
cannot withstand analysis in light of Blakely. We agree. The "maximum sentence" for Apprendi analysis in this case is the five-year
presumptive sentence in § 13-701(C)(1). Because a sentence in excess of five years could be imposed on McMullen only after a
finding of one or more of the aggravating circumstances in § 13-702(C), the Sixth Amendment guarantee of jury trial extends to the
finding of these facts and requires proof beyond a reasonable doubt. (John A. Stookey submitted a brief on behalf of AACJ; James J.
Haas submitted an amicus on behalf of the Maricopa County Public Defenders).

The reported decision in which our attorneys appeared on behalf of individual members:

Bergeron ex rel. Perez v. O'Neil, 205 Ariz. 640, 74 P.3d 952 (App. 2003). Eleanor Miller, Ralph Ellinwood and Nicholas Hentoff
appeared on behalf of individual members in both the trial court and at the Arizona Court of Appeals, Division 2, that held, "Judges'
orders, requiring attorneys to explain their reasons for having filed notices of change of judges in various criminal actions, after
attorneys had avowed that their notices were not being filed for any improper purpose, contradicted purpose of criminal procedure rule
governing change of judge on request; perceived policy benefits of rule depended on mechanism by which litigants could remove
judge without explaining basis for doing so."

Recent Amicus Submissions

In the Matter of James Joseph Hamm, Supreme Court No. SB-04-0079-M. AACJ submitted a brief in the case of James Hamm,
whose admission to the bar is at issue. Mr. Hamm was convicted of two murders more than twenty five years ago, and the State Bar
submitted an amicus brief to argue per se disqualification based upon the prior convictions. As a side note, the State bar is attempting
a rule change that would disqualify any applicant for the bar who had any felony conviction. Without addressing the merits of Mr.
Hamm's application, a team of lawyers on behalf of AACJ stressed the importance of rehabilitation in any consideration of past
misdeeds and suggested a totality of circumstances test to determine eligibility for the bar. The Supreme Court accepted the AACJ
Amicus request and granted a request to participate in oral argument. The date and time of oral argument shall be set by future order,
and the membership will be updated as the matter progresses. (Participating Members: Marty Lieberman; Andy Silverman; Laura
Winsky; Carla Ryan, Amy Nguyen; and Michael Kimerer, a Past President of The State Bar of Arizona.

Biggs v. Keppel, Supreme Court No. CV-04-0404-SA. AACJ submitted a brief to the Arizona Supreme Court on the issue whether a
prosecuting attorney must submit to the grand jury evidence of the affirmative defense justification. The brief outlines the historical
importance of the grand jury and the continuing need to present both sides of the facts to jurors, so that jurors may both accuse those
in need and exonerate those deserving. The brief introduces a new argument based on ethical obligations of an attorney to present
both favorable and unfavorable facts in any ex parte proceeding. (Submitted by Tom Crowe, attorney for the defense in the Crimmins
special action).

Paterakis v. Hotham. AACJ submitted a brief detailing the importance of enforcing the Interstate Compact on Detainers.

Canion v. Cole, 208 Ariz. 133, 91 P.3d 355 (2004); Arizona Supreme Court No. CV-04-0243 PR. In this case, the Arizona Court of
Appeals, Division 1 held that, "State's duty of disclosure of evidence favorable to defendant did not end with verdict in which he was
found guilty of firstdegree felony murder, and after defendant, in post-conviction relief proceedings, showed good cause and made
colorable allegations of newly discovered materials suggesting that evidence that should have been disclosed to him was not,