Jameson Johnson, a Phoenix litigation support guy, tells me that Radley Balko’s name for Maricopa County, Marikafka, has become part of the local lexicon. The division between the criminal defense side, those who have even the smallest expectation that law will prevail over order, could not be more clear than the image painted of the courtroom in the continued hearing of Adam Stoddard by Nick Martin at Heat City.
Maricopa County Judge Gary Donahoe looked out on a courtroom divided cleanly in half on Tuesday, all the way back through the gallery. On one side was a packed batch of local defense attorneys. On the other, a battery of sheriff’s deputies, each donning a brown uniform and badge.
This image didn’t escape the judge’s attention.
Donahoe scanned the courtroom and shrugged. “There is a line here that I have to balance,” he said. Then he asked the two sides what he should do.
It’s as if the judge feared that the wrong decision, the one that upset the brown badged side, and he wouldn’t make it out of the courtroom. If not that day, then some day. Stoddard’s fellow deputies wouldn’t forget that he didn’t back them up, no matter what. That’s how the deal works when you wear a uniform and carry a gun. I f you expect them to take a bullet for you, you better be prepared to take one for them.
The defense attorney, Joanne Cuccia, whose file was rifled by Stoddard behind her back as she argued, took the stand on the final day of the hearing. Her testimony was curious.
Final testimony wrapped up Tuesday with Cuccia saying she was concerned about her reputation. An attorney for 10 years with a spotless record with the bar, Cuccia said she felt like she was being accused of a crime herself. “I’ve never been accused of wrongdoing before,” she said.
Craig Mehrens, a high-profile Phoenix lawyer who is representing Cuccia in the matter, asked her: “Other than your reputation, what else do you have as a lawyer?”
“Nothing,” she said.
Certainly, Cuccia was hurt at the suggestion that her file harbored evidence of a crime, or that she subverted the local process by failing to adhere to the courthouse protocol. But rather than express outrage at Stoddard’s conduct, she was defensive, as if “she was being accused of a crime herself.” She wasn’t, so why succumb to feelings of guilt and regret? More importantly, where was the outrage at the violation of the sanctity of her file?
The question is now in Judge Gary Donahoe’s hands, but it has become increasingly unclear what the question is.
The question is now in Judge Gary Donahoe’s hands, but it has become increasingly unclear what the question is.
Donahoe said he did not have the authority to hold Stoddard in “direct criminal contempt” because the offense had not taken place in front of him or even in his courtroom.
If anything, Donahoe said, he could decide to hold the detention officer in “indirect civil contempt,” which carries much less weight. Even then, Stoddard has already given the documents in question back to the defense attorney, so Donahoe said he was unsure what order the contempt citation could carry.
What you are smelling is capitulation. Donahoe is undercutting the point of the hearing, piece by piece, inch by inch, letting the audience down easy as if his hands were tied. Poor Judge Donahoe. Whatever can he do?
“I don’t want to unnecessarily hinder or prevent deputies from carrying out security in the courtroom,” Donahoe said.
But Mehrens argued the judge has a greater duty to protect the attorney-client privilege, a sacred right in the legal world.
“I would argue that’s exactly your job,” Mehrens said.
Any attack on that is harmful to the entire legal system, he said. He asked Donahoe to hold not only Stoddard, but also the entire Maricopa County Sheriff’s Office, in contempt and to fine the people involved personally.
Of course, that’s not going to happen. Tom Liddy (yes, son of that Liddy), the county attorney who represents the deputies, offers the compromise that will allow Donahoe to pretend to do his job while doing no more than pacify the crowd.
“It is not the position of the sheriff that was the right thing to do,” Liddy told the judge. “It’s the position of the sheriff that he had a good-faith basis to do so.”
Liddy conceded that Stoddard could have handled things better, but that this was merely a poor choice in the good faith performance of his duty. Having seen words on a paper that raised “red flags,” what choice did Stoddard have but to safeguard the public from this evil Mexican drug gang member, a gang that has been known to “corrupt criminal defense lawyers.”
Mehrens wasn’t buying, and put up a valiant front:
Mehrens wasn’t buying, and put up a valiant front:
But Mehrens responded by telling the judge that all the talk about the Mexican Mafia and what other attorneys have done in the past is a distraction from the case at hand. No one has suspected Cuccia of being corrupted, and in fact, the document that was taken never revealed a crime had taken place.There is really no legal argument to be made in favor of dumb good faith trumping the attorney/client privilege, but as Donahoe made clear, he isn’t going to let that stand in his way of staying on the good side of the deputies. His decision will eventually issue, but the writing on the wall is already pretty clear: Stoddard was wrong, but not malevolent, in his violating Cuccia’s file. Donahoe will give Stoddard a relatively firm rebuke, but no penalty for his actions, both because Donahoe’s hands are tied and because Stoddard’s only motivation was to perform his duty to protect the court and the public. Donahoe will admonish the sheriff’s department to train their deputies to be more respectful of the sanctity of the defense file, and to seek court intervention when they believe that the file contains evidence of a wrong. And everyone will go home happy.
“It was not a good faith belief,” Mehrens said. “It is a belief by him and by the people he works for that they can do anything they want and get away with it.”
One might think that Judge Donahoe doesn’t have the guts to do his job, to stare down the sea of deputies in his courtroom and let them know which side of the law they work for. But I doubt he has the slightest interest in doing so, even if he had the balls for it. His comments seem designed to further his real purpose, to deflect the glare of a watching nation from a video of one of the most outrageous and egregious violations of privilege so that this ugly and tense moment in the Marikafka County courthouse fades quickly from memory.
I can’t help but wonder, as the edge of this matter grows increasingly dull in the hands of Judge Gary Donahoe, whether any of the locals who felt that it would have been too dangerous and troublesome for Cuccia to make a stand at the time this happened, to have not “calmed down” with her feelings of persecution, to have used that opportunity to strike a blow.
What do they plan to do after Donahoe decides? Call it Marikafka County and smirk at their wit? Big deal.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
A question for Gary Donahoe: How did you feel, way back when, as you woke up, knowing you had sold your soul for a legal fiction?
This is a very sorry affair which even in ‘police state’ Britain would simply never have occurred without censure.
However, whilst the legal professional privilege is a corner-stone of due process, that doesn’t necessarily mean this deputy knew that to be the case.
The way the deputy acted, the way the judge didn’t alert defence counsel, and the unbelievable lack of outrage on the part of the prosecutor all militate to the view that not the sheriff, nor anyone else, realised what was occurring was wholly wrong, and a clear contempt for the rule of law, if not the court.
If that is the case then retraining, rather than any other punishment, is exactly what this officer needs. If that order is joined with a very clear statement as to what the court will determine is contempt in the future, then might it be hoped that this (obviously accepted) practice in [wherever the hell it is] county will end?
If that is the outcome, then Donahoe will have met the needs of the case.
Good work as always Scot, let us know what happens next… Having said all of the above, I expect a whitewash.
The merit of retraining assumes that Stoddard’s conduct reflected a good faith mistake, a mere failure to comprehend that the defense lawyer’s file is a place he cannot go. From everything known about the system in Maricopa County, this assumption is unwarranted. It’s not necessarily that he knew better, but that they don’t care. This is just one of too many instances of local law enforcement demonstrating that it will do as it pleases with impunity.
I really don’t know what the solution is here. The Justice Department has been investigating for over a year. Thus far, that investigation has had no other result than Arpaio trespassing FBI agents off county property.
We have campaigned against Arpaio and Thomas. Political infighting within the Democratic party has lengthened the long odds of unseating either the County Attorney or Sheriff. Politically, Arizona remains tin-foil-hat-crazy to the right. I’m surprised Sarah Palin hasn’t moved here. We routinely see members of racist organizations like J.T. Ready of NSM photographed with elected officials.
I know it can be different. The Arizona District Court functions just as any other Federal court does. Of course, the judges and magistrates actually run their courtrooms, and tolerate no foolishness.
Sir, as you know this instance of “doing as it pleases with impunity” goes hand in hand with the thousands of “instances” Packratt documents & displays on InjusticeEverywhere.com
99% of the time the grand juries refuse to indict and or police unions persuade it to go away. It’s a nationwide problem and results in distrust for badges, gowns & juries. The “System” is on thin ice with the public at large.
Maricopa County still doesn’t hold a candle to Harris County (Texas)in regards to professional corruption. This case is similar to the judge that observed the “Sleeping Lawyer” & said nothing, as this judge did. The inmate noticed it and told the lawyer which told the judge who called them to discuss it sidebar. Stinky isn’t it? Please let us know if you find out what the file had on it that warranted the “good faith” pick pocket? Thanks.
The Praetortian Guard turned out in force and Judge Donahoe asked them for advice.
I wonder if history will repeat itself.