Sunday, August 15, 2010

That Adversary System? It's Worse in Arizona - with Update

A week and a half ago, I wrote about Asuncion Avila-Villa.  She's facing a death penalty prosecution in Butler County, Ohio, and the prosecutor there is trying to control her defense. 
But before we get back to that (and we will), I need to fill you in just a bit about Butler County.  In particular, I want to tell you about Spotlight Jones.
His given name is actually Richard, and he's the Sheriff of Butler County.  He's known as Spotlight because he seeks it, and of course, he finds it.  His hero, it's said, is John Wayne, and I'm told he has a life-size cardboard cutout of the Duke in his office.
But he's a technological John Wayne.  He's managed, for instance, to put mug shots of all the inmates at his county jail on line.  Along with the charges that they're facing.  Sort of a permanent perp walk.
He doesn't do the pink underwear thing or have a chain gang, but he does have inmates commit suicide at an alarming pace.
And then there's the immigrant thing.  Here's Spotlight now.

The arrow, of course, points to the jail.  And here's one of the billboards he's put up around the county.

He specializes in raids on Hispanic businesses and on places that employ Hispanics. Not surprisingly, Spotlight  isn't particularly interested in tracking down undocumented Canadians.  Equally not surprisingly, U.S. citizens who happen to be Hispanic have been leaving Butler County for less threatening places.
The accusations of profiling are rife, and there's a whole lot of serious documentation to indicate that the complaints don't just come from a few disgruntled folks.
Anyway, Avila-Villa, you'll recall, asked the court for funds to hire a forensic psychiatrist.  She asked that she be allowed to have the request heard ex parte (in front of the judge alone, without the prosecutor there).  But the prosecutor objected.
No, the prosecutor argued, you have no right to tell the judge privately what your defense theory will be and what things you're investigating.  We can keep that stuff secret because we have a government funded budget.  But since you have to ask for money from the county, we get to know how you plan to use it and why.  (OK, that's not how the prosecutor put it, but that's the essence of the argument.)
But the prosecutor wasn't done.  You want a really good expert.  Nope.  Judge, don't let them have that.  All Avila-Villa is entitled to is a barely passable expert, and you shouldn't let her have more.  If she wanted a better expert, she should have been rich.  (OK, they didn't put it exactly that way, either, but that's the essence of the argument.)  Hell, read it for yourself.
And as we know, the judge agreed.
What I said when I wrote about this before is still right.
The prosecutor has no right to weigh in on the question of how much the defense may spend or who the defense may hire.  No right.  None.
The judge must authorize necessary expenses, which means that if Avila-Villa's counsel have shown they need Dr. Resnick, and if he's available to them, the judge must authorize the money.
And the prosecutor has nothing to say about it.  
Because, really, we're not all in this together.
So, you ask, if Gamso thinks he was right then, and if nothing's changed, why is he writing about it again?
Maricopa County, Arizona, naturally.
OK, I'll back up.
William Miller is on trial for his life in Maricopa County.  He's accused of killing five people, two of them children, in March 2006.  In July 2007, in a jailhouse interview, he told Jim Walsh of the Arizona Republic that he killed one of the five but that an accomplice (someone he refused to name) killed the others, including both children.
"I'm confessing to being responsible for them, yes," Miller, 30, said from his cell at the Fourth Avenue Jail.

"It's a loss of life. I sit there before I go to bed every night. I think about what could have been done differently."
At the time, he was intending to plead guilty.  And he was content with the prospect of a death sentence.   Apparently, that's all changed.
In April this year (if I'm reading the on-line docket correctly), Miller filed a motion asking for an ex parte hearing to address "defense investigation into mitigation matters."  Family members of the dead objected.  They claimed that under the Arizona Constitution and also under Arizona statutes, they have an absolute right to attend any hearing the defendant can attend.*  The trial court didn't buy it.  The rights of statutory "victims" can't trump the rights of a criminal defendant, the court said.
So the "victims" went to the court of appeals.  On Thursday, the court ruled.
Oh, sure, a defendant has a right to an ex parte hearing on mitigation matters.  But not a right that trumps the all important right of victims to be present.  Yeah, the court said, we know that if there's a conflict between the defendant's rights and the rights of victims a defendant should win.  But the Miller didn't say on the record what it is that he doesn't want to reveal (i.e., he didn't announce his secrets publicly), so really, there's no conflict. Victims win.

And so we return from Maricopa County, Arizona to Maricopa Butler County, Ohio, where about the best thing you can say is that the victim's rights provisions of Ohio law are not so deeply offensive as the provisions of Arizona law.
And that Avila-Villa has an appeal pending.

I've seen the documents now. The pending appeal in Avila-Villa's case is not over the ex parte and funding issues.  So that ruling will stand, at least for now, in Butler County.

*The so-called victims have, in fact, filed memoranda opposing many of the defense motions.  The already wobbly adversary system, one designed (though not applied) to favor criminal defendants, comes close to total collapse when the accused must defend himself against both the government and the vengeful bereaved.


  1. There is not much that shocks me. This does. Her attorneys, and any others tasked to represent her without adequate funding, should resign.

    I can think of no other way to make the point.

  2. In my mind, victims don't have any rights over and above disinterested civilians. Certainly they have no right to oppose the defense.

    As for the funding, I can understand that the State should not provide money for the defense equal to that of, say, O.J. Simpson, but the amount should certainly be reasonable and adequate.

  3. First, the legal writing of the prosecuting attorney in Butler is simply atrocious. Second, this victims' rights bullshit which has made its rounds in recent years is insane. That the state rather than the victim is the prosecuting party to a criminal action is day one stuff. It's less than basic. To start injecting individuals into the process with any decision making power is ludicrous.