In my experience most prosecutors play by the rules.  They know their ethical duties and abide by them.  However, I, along with many of my colleagues, have observed a growing number of prosecutors that have no problem stepping over the ethics line.  The issue seems more to do with ignorance than intent.

For the most part, the public is unaware of this growing problem.  It is only when the misconduct is so outrageous and the victim has the means to fight it does the misconduct make its way to the public’s attention (e.g. the 2006 Duke University lacrosse case.)   When prosecutorial misconduct truly does occur, only a small percentage of prosecutors are disciplined for their actions.  Apparently, a new report from the Northern California Innocence Project at Santa Clara University School of Law demonstrates this problem is not isolated to Arizona.

The Report examined more than 4,000 cases where prosecutorial misconduct was alleged over a twelve year period.  The Report found that courts only made prosecutorial misconduct a finding in approximately 700 of 4,000 of the cases.  In those 700 cases, only six (6) prosecutors were charged with misconduct.  Obviously, as a former prosecutor, I understand that when someone is convicted of a crime, it may result in a frivolous claim; still these numbers are still extraordinary.

In addition, this report determined that judges often failed to report prosecutorial misconduct to the state bar despite their legal obligation to notify the bar of such behavior.  Although over sixty prosecutors (60) committed misconduct more than once, and some more than five times, the majority of those prosecutors were never publicly disciplined.

In response to the report, the State Bar of California, issued the following written statement:

“Prosecutorial misconduct as indicated in the Innocence Project report does not always equate with attorney misconduct for disciplinary purposes.  The State Bar believes that it is disciplining criminal prosecutors where appropriate and where the misconduct was willful and can be established by clear and convincing evidence.”

If you have a specific legal question regarding prosecutorial misconduct in an Arizona Criminal Case, please contact The Koplow Law Firm at 602-494-3444.

Lawrence Koplow

On July 28, 2010 the federal district court issued an injunction to part of the highly publicized and talked about immigration bill in Arizona, known through-out the country as SB 1070.

Practically speaking, this means that part of the bill is not enforceable until the appellate courts determine its constitutionality. Judge Susan Bolton had to read the bill piece by piece and line by line using the appropriate legal standards, statutes, and case law, to determine which provisions of the bill were constitutional, and which were not.

When the United States brought the lawsuit against the state of Arizona, their main legal argument was that Arizona could not make immigration law, because that is a power given only to the Federal Government. Arizona argued that this bill added to already existing Arizona statutes and that Arizona was not stepping on or over, the current federal laws.  The legal principal at issue is known as Federal Preemption.

For the most part, the decision of the court at this point was to allow Arizona to continue to enforce some parts of the bill. The sections of the law left in place include:

• Making it a crime to knowingly or intentionally employ an illegal alien

• Requiring employers to check for the immigration eligibility of an employee

• Making it a crime to smuggle human being across the border

• Making it a crime to stop a car to pick up day laborers if it interrupts the normal flow of traffic

• Impounding vehicles that were used for transportation or harboring people who are unlawfully in the United States

• Allowing Arizona to create the Gang and Immigration Intelligence Team Enforcement Mission Fund

This order also prevents Arizona law enforcement from enforcing some of the bill.  The sections of the law struck down by the court include:

• Making it a crime for persons not to carry their registration papers

• Having the status of a person’s immigration checked before releasing them from custody

• Allowing a warrantless arrest based on probable cause of a person who is believed to have committed a crime that would subject them to removal from the United States

To read the entire decision, click on here.

The Arizona Supreme Court also addressed the federal court’s decision on SB 1070.  Soon after the federal court’s ruling the Arizona Supreme Court released an Administrative Order regarding the bill.  The Order made changes to procedures and forms used when an illegal alien is arrested, or sentenced. For example, if a criminal defendant is sentenced, including even to pay a fine, and it has been found that the defendant is an alien who is unlawfully present in the United States, the judge must include this fact in the sentencing report. Then the clerk of the court must submit that report to the Immigration and Customs Enforcement Office.

The form used at the time of arrest will be modified to include a place for the law enforcement agent to ask the person in custody for his place of birth, country of citizenship, and amount of time present in the United States. The form also includes a place for the law enforcement agent to spell out what the reasonable suspicion was that prompted the law enforcement agent to make the arrest, and a reminder to the agent to check with Federal Immigration Agencies to verify the immigration status of the defendant.

If you have a question about a specific legal issue, please contact The Koplow Law Firm.

Lawrence Koplow

Drug sniffing dogs – you see them at the airport, the bus station, and on television. They serve an important purpose for law enforcement and the public. That is, they smell drugs when humans cannot. Moreover, the dogs do it in a manner that is not invasive to the people being search. However, there are some rules, like the 4th Amendment to constitution, that restrict how these dogs can be used.

For example, law enforcement can’t just bust down your door without a warrant and take a dog through your house to smell everything. When it comes to your home, the Fourth Amendment to the Unites Constitution was created protect against such unreasonable entries. However, the courts are giving law enforcement more and more “leeway” on how they use man’s best friend to overcome the constitutional hurdles of the Fourth Amendment.

Look for example at a 2010 Arizona Court of Appeals case, State v. Guillen. In Guillen, one of questions asked was: if consent to search a home is valid, when the resident giving consent was unaware of a dog-sniff conducted on her property, without a warrant, before she arrived home. That is, law enforcement went on her property without a warrant, had the dog sniff the garage and the dog smelled something. Then they asked the homeowner to search the house. At the heart of the case is the fact she consented to search.

One could could argue this way: law enforcement violated her fourth amendment rights, used the information they got illegally to help make an arrest that merely appeared legal. After all, would the resident have consented if she had known that a potentially illegal search / entry on her property had just occurred?

The above theory was essentially adopted by the defendant’s attorney in front of the Arizona Court of Appeals. They posited that the initial dog sniff on the property without the owner’s knowledge was illegal police misconduct in the first place. Thus, the later consent was not valid, and the entire search of the home would be illegal.

In general, courts consider the term “Consent” to mean the voluntary, and un-coerced permission of a person which allows a government official to take a specified action without a warrant.

However, the court disagreed with this argument after looking at the chain of events. The Court stated that the relationship between the sniff and the consent was the determining factor. For the consent to be invalid as the defendant’s attorney suggested, the consent must have been caused as a result of police misconduct. The fact that the resident did not know about the dog sniff, and she was not forced to allow police in the home, and she was not forced to allow police in the home, means that the consent was not a result of the dog sniff, and was not invalid on that argument alone.

It appears the court did not address the actual constitutionality of the dog sniff in the driveway. Consequently, the door may be left open to argue the constitutionally of this type search in the future if the facts distinguishable.

If you have question about a specific legal issue please contact the Koplow Law Firm.

Lawrence Koplow

We should all be able to agree if you are charged with a crime, you should get a fair trial. An obvious prerequisite to a fair trial is that the jurors at least understand everything going on in the courtroom. That is, a juror should, at a minimum, be able to comprehend all evidence presented and understand the rules (i.e. the jury instructions) provided by the judge.

What if a juror says to the judge, “I can’t read English” Upon further questioning, you discover the juror can speak (relatively) fluent English, but can’t read or write even one word. When this happened during one of my trials, my first thought was, let’s just get an interpreter. However, this juror spoke an eastern European language for which there was little chance of finding an interpreter on short notice. What should the court do in this situation?

I submit that reasonable minds can disagree on the answer to this question. My stated position, based on his inability to read or write any English, was that he could not be a fair and impartial juror for my client (moreover, I had a feeling this juror, who grew up in a former Soviet bloc country, may not value the presumption of innocence.) I argued that, absent an interpreter, being a juror required the ability to read and write (i.e. jury instructions.) Moreover, how could we ever qualify how much English he really knew? So I motioned to strike him for cause.

The prosecutor took no position. The judge denied the motion. In all fairness, the judge had a reason. He believed we could accommodate the juror by having his judicial assistant read this juror the jury instructions. However, my response was: (1) We can’t tell how much English he really knows without speaking his language; (2) in Arizona, jurors can write down questions to ask a witness. It seemed unlikely that he would get the clerk and have her ask the question; and (3) sometimes there are words that have no translation from English to another language. Not all languages have an adequate vocabulary to translate the concept of “beyond reasonable doubt.” The judge was not persuaded. He denied my motion. My tactic was to now turn towards the prosecutor. I discussed the possible appellate issues, and we agreed he would strike the juror to avoid the issue.

So, after the trial, I did some research, talked with my appellate attorney guru friend and concluded that under Arizona law, the judge may have been in his discretion to keep the juror. It would be a close call. Arizona law would most likely require me to show actual “prejudice” by keeping the juror on the panel. Under Arizona law, this would be almost impossible.

Consequently, if you thought the ability to read was a prerequisite for jury service, then think again. Not only is it a real possibility that your juror may not be able to read, it is also legal.

Asset forfeiture occurs when the government claims someone has profited from criminal activity.  The government will then attempt to seize the proceeds of that criminal conduct.  However, law enforcement often seizes money and property well beyond what the law allows.  Common scenarios include a person who was not involved in a crime yet has their property taken; or when there has been a minor crime, but there is substantial overreaching by the government in what they take from the person.

Below are answers to several of the questions I am often asked about government seizure and forfeiture.

1.  May law enforcement simply take my assets if they think I committed a crime?

No, the asset (usually, cash, bank accounts, jewelry, real property, automobiles, etc…) must be seized through the judicial process. Arizona has laws that dictate specific procedures the government must follow to seize property.  Generally, if the government can make a showing of probable cause that the assets were obtained as fruits of criminal activity, or “traceable” to the criminal activity, the courts will allow the seizure.

Then, the government has to prove in a civil, administrative or criminal proceeding that the asset was used to facilitate criminal activity (i.e. fraud or drug trafficking), or was derived from criminal activity, for it to be forfeited to the government.

2.  How are assets seized?

Assets are seized by law enforcement incident to arrest, a search warrant, consent or with a seizure order.

3.  What type of assets can be seized?

Contraband (i.e. illegal drugs and illegal weapons) is the most well known type of property seized by the government.  Obviously, this type of property does not cause many disputes.

Beyond contraband, the government may take alleged proceeds from criminal activity such as vehicles, houses, funds in bank accounts, cash, or an entire business enterprise.

4.  After my property is seized, what happens to it?

When an asset (such as cash, a home, or a vehicle) is seized by the government, it is stored in the same manner as evidence in a criminal case. Departmental reports are drafted indicating the identity of the property owner, an estimated value and a description of the asset.  Moreover, any liens are also recorded.

5. What law enforcement agencies are involved in seizures and forfeiture proceedings?

State, Municipal and Federal law enforcement all regularly conduct seizure and forfeiture actions.  Some of the agencies involved are the Arizona Attorney General’s Office, the Maricopa County Attorney’s Office, the Pinal County Attorneys’ Office, the Pima County Attorneys’ Office, the Coconino County Attorneys’ Office, The Yavapai County Attorneys’ Office, etc…  Moreover, most federal agencies, such as the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS) also conduct these proceedings.

6. Does law enforcement have to prove I committed a crime prior to seizing my assets?

Surprisingly, the government need not obtain a criminal conviction prior to taking a person’s assets.  Seizure and forfeiture proceedings are considered civil (non-criminal) matters. Thus, law enforcement need merely meet the civil standards to take property, and not the more stringent criminal standards.  The procedures for taking property are specified in Arizona Revised Statutes, Section 13-4310.

7. Can you fight the forfeiture?

Yes. Arizona law permits a person whose property has been seized to contest the government seizure.  Arizona law specifically provides that certain property is not subject to forfeiture.  It is common that law enforcement fails to observe these statutory requirements when they take property.  Thus, a person may be able to recover their property if the government did not observe these laws or follow the proper procedure.

In addition, many circumstances involve a property owner that has no relation to the alleged crime.  This person may not have been present at the time of the alleged crime, nor even had any knowledge of it (i.e. loaning an automobile to someone who committed a crime.) The so-called “innocent” property owner has the legal right to contest the seizure of her property.

In sum, the mere fact that property has been seized by law enforcement does not mean that it was a lawful taking.

If you need legal advice for a specific problem, you must consult with an Arizona Criminal Defense Attorney. For more information about Arizona Criminal Law or a specific legal problem, please contact the Koplow Law Firm online or by phone at (602) 494-3444.

There are many crimes in Arizona that result in a person serving a term of jail.  A term of jail can devastate a person’s career.  However, there are two programs that will allow a person to continue working while a person is serving a term of jail.  Furthermore, these programs DO NOT extend the time a person spends in custody.

Under both the Work Furlough and Work Release programs, a person may continue working and fulfill the requirements of their sentence.  In felony cases, the courts primarily permit the Work Furlough program.  In misdemeanor cases, the courts primarily use the Work Release program.  In some misdemeanor cases, the courts may also allow the home detention program.  Below are some frequently asked questions regarding the Work Furlough program.

What is the Work Furlough program?

When a person is sentenced to a term of jail, it may be possible for that person to be released to allow the person to continue working.  Inmates accepted into the Work Furlough program are permitted to participate in work outside of the jail at their places of employment.  However, the Work Furlough program has more restrictions than the Work Release program.

How do I get Into the Work Furlough program?

There are two ways by which a person may be accepted into the Work Furlough program: (1) by court order; and (2) by the programs’ screening and approval process.  The first step in the Work Furlough program is to participate in a Work Furlough orientation (held Monday through Friday).  After going through the initial orientation, inmates are given anywhere from four (4) to eight (8) hours to go home and collect some of their clothing (see below for further information), get the initial $125.00 Work Furlough payment money order, and to have the “letter of understanding” signed by their employer.  The inmate then returns to the jail facility and has their release hours set by a Work Furlough officer.    

Where does the jail house Work Furlough inmates? 

Inmates who are selected and approved for this program are housed in a separate area of the jail facility (in Maricopa County it is “Tents”).  Inmates who are approved for and participate in this program are allowed to wear their own clothing and are not “dressed out” in jail attire while they are completing their incarceration term.

What is the cost to participate in Work Furlough?

The Work Furlough program costs the inmate’s hourly wage plus $3.00 per day (7 days per week).  For example, an individual making $12.00 per hour would pay $15.00 per day for a total of $105.00 per week to participate in the Work Furlough program.  All earnings must be submitted to the Work Furlough program, and all Work Furlough fees will be deducted from the inmate’s earning, with the balance being returned to the inmate. 

How many days per week can an inmate work?

An inmate can work a maximum of six (6) days per week, and their release hours cannot exceed twelve (12) hours per day (including travel time).  D.U.I. offenders are limited to a maximum of only five (5) days per week out of the jail.  In addition, all inmates participating in the Work Furlough program must work a minimum of thirty-two (32) hours per week.   

What can Work Furlough inmates have with them in the jail?

Per the Work Furlough handbook, the following items are permissible:

-Prescription eyeglasses

-1 jacket or sweater (no hood)

-1 plastic flashlight (C size max)

-1 watch

-1 wedding ring

-1 wallet (DL or ID)

-1 paperback book or magazine

-1 non electric clock

-Prescription medication (to be dispensed by the jail)

-5 sets of clothes

-2 pair of shoes (plus an additional pair of “shower shoes”)

-2 towels

-$40.00 in cash

What types of clothing are not permitted for Work Furlough inmates?

Sleeveless shirts, tube tops, tank tops, low cut shorts, bathing suits, shirts that expose the stomach, clothing with unacceptable language or gang affiliations printed on it, see through clothing, flip flops, sandals, and steel-toed boots are all not permitted.

What about personal hygiene items?

All personal hygiene items (shampoo, razors, toothbrushes, toothpaste, deodorant, etc. must be purchased from the jail vending machines.

Am I allowed to go home during my work hours?

No.  When you are admitted to the Work Furlough program, you agree to travel only between your place of employment and the jail, unless you are specifically authorized to do otherwise by a Work Furlough officer.  If you are dismissed early from work, on any day, you are to page your surveillance officer and inform them of this and then return immediately to the jail.  You are not allowed to go home, or to the residence of family, friends, or employers for any reason. 

Is there anything a person about to serve a term in jail must do to qualify for the Work Furlough program?

Yes.  Prior to serving a jail term, a person must successfully complete a health screening and bring the completed health screening form with them when they begin their term of incarceration. A health screening is generally required for both the Work Furlough and the Work Release program (however, shorter terms of incarceration may not require the screening in the Work Release program).  The process requires a person to go to a healthcare provider (usually a family doctor) and have them do a TB test.  The provider must also complete the healthcare screening form that states the results of the test and that the person is healthy enough to serve the term of jail.  If a person is taken into custody without this form, then the jail will either not allow them to enter the Work Furlough program or put off the person’s participation in the program until the jail’s own healthcare providers can screen them.  This process could easily take weeks.  Thus, it is essential for a person to complete the healthcare screening and bring the completed form with them when they are taken into custody.

Do the rules of the Work Furlough program ever change?

Yes.  The jail can alter their rules, regulations and costs at anytime and without notice.  The above information is merely an example of the guidelines in place at the time of this writing and may not apply to a particular case.  When someone is about to serve a term of jail, they should contact the jail and the Work Furlough program to confirm what rules and costs are in place at that time.