Sunday, December 6, 2009

Back to Maricopa

Stoddard's lawyer wants the whole letter.

You remember the letter. It contains the words "going to,” “steal” and “money” grouped near each other in a single sentence at the bottom of the handwritten page. Those words, seen from across a courtroom, on a paper sticking partway out of a criminal defense lawyer's file, alarmed Stoddard because . . . . Frankly, I have no idea. No, that's not fair. Stoddard said that from those four words he thought that the letter was either evidence of a "future crime" or some sort of illegal communication from inside to outside the jail.

That doesn't strike me as a particularly rational inference, but I'm not a Maricopa County Sheriff's employee. In any event, they alarmed Stoddard enough to believe that he had to take that paper and have a copy made. Or so he said. And it's what he did.

When at a later time he read the whole letter later, he decided those fears were unfounded, but he developed an actual "security concern." He testified:
My security concern was knowing Inmate Lozano [the defendant she was standing up in court with at the time] is associated with the Mexican Mafia, and knowing some of the Mexican Mafia history on how they get information from the inside tothe outside, the outside to the inside of the jail, that he could be trying to solicit Ms. Cuccia [his lawyer, the attorney from whose file the paper was taken] to help him in some way, shape, or form in this misconduct.
Let's imagine that's true. So what? Oh, I mean I get it that if there's a conspiracy to coerce an innocent attorney into helping the Mexican Mafia (notice that even the court reporter used uppercase to emphasize the horror of the thing) violate Sheriff Joe's security, it's a bad thing. But what does that have to do with whether Stoddard had any basis to pull the letter out of Cuccia's file?

Let's go back.

When Stoddard, who's some sort of law enforcement officer (Detention Officer isn't a job title in my neck of the legal woods, but I gather he does court security and jail transport work for the Sheriff) first read a paper, or part of one, in Cuccia's file, and then when he took that paper out and had it photocopied, he implicated at least two legal concerns: attorney-client privilege and the Fourth Amendment.

The law of privilege is state specific and riddled with exceptions, but the guts of it is that communications between attorney and client in the course of representation are secret. They're even secret when they include information that law enforcement officers or prosecutors or judges or newspaper reporters might like to have. The privilege can be waived, the communication can be made public, but only with the consent of the client, in this case Lozano. (It's the client's privilege, not the lawyer's). The reason for the privilege is to encourage clients and lawyers to speak freely with each other so that the lawyer has the information necessary to do her job and the client the information necessary to make any choices that need to be made.

The Fourth Amendment is different. You know the text (or you should).
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The protection of the Fourth Amendment is not absolute. The courts have limited it and narrowed it and found exceptions to it so often that it seems mostly illusory today. But it's still there. And it's supposed to mean something. While only the client has a legal right to complain about the violation of attorney-client privilege, it seems clear that both Lozano and Cuccia had a Fourth Amendment protected interest in the contents of her file.

Again, Fourth Amendment law is largely a sea of exceptions, but the underlying principle always applies: Law enforcement cannot search through your stuff without a warrant or some circumstance that makes a warrant unnecessary.

In this case, Stoddard might argue that because he could read the problematic words from across the room, what's known as the plain view exception applies. That exception is, essentially, that cops don't have to be blind. If they see something that is obviously illegal (the legal language is that the problematic nature of what's seen must be "immediately apparent"), they can seize it. But there's nothing about the words "going to" "steal" and "money" in a paper in the file of a criminal defense lawyer that shows the paper's criminal nature to be immediately apparent.

The other potentially relevant exception arises when there's a combination of probable cause and an exigency. Probable cause is sufficient basis to believe that the paper is criminal. An exigency is some circumstance that would make getting a warrant so cumbersome that the evidence would be lost. Even if there were probable cause, and it's hard to see, Stoddard could have asked the judge for a warrant. They were in court, for godssake. In front of a judge. No problem if there was probable cause to get a warrant before Cuccia destroyed the incriminating paper. So no exigency; therefore no exception.

As for probable cause, the Supreme Court says that's enough cause for a reasonable person to believe it, but maybe not enough to make it more likely than not. Got that? When it's probably not true but reasonable people would believe it anyway, that's probable cause. Really. Honest. Here's the language from Texas v. Brown (admittedly a plurality opinion, but everyone accepts it).
As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U. S. 132, 162 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U. S. 160, 176 (1949).
So no exception to the Fourth Amendment. Therefore, no right, none, zippo, for Stoddard to reach in and take the paper (let alone copy it).

Still, this is Maricopa County, so when Judge Donahoe held the contempt hearing, he insisted that Lozano waive his attorney-client privilege in the letter. Or maybe just in the four words Stoddard claims to have relied on.

Now, Stoddard wants it all. He needs the letter, his lawyer says, in order to defend himself. Aside from the fact that it's too late for that - the time to defend was when the contempt hearing was going on - it's hard to see how the letter would help. And he doesn't explain.

Here's the basic reason. You can't justify an act by its consequence. An illegal search doesn't become legal because it turns up drugs. You have to have a legitimate basis to invade the privilege or the Fourth Amendment at the time you do it. Doesn't count if you find the basis later. And Stoddard didn't read the letter until after he swiped it.

What will happen next? As always, this is Maricopa County, so all we really know is that it will be problematic.

But that's the future, because there's more in the present. There's Judge Barbara Mundell.

According to Ray Stern at the New Times, she's the "top judge" on the Superior Court (which would seem to make her the Mt. Everest of judges but who am I to, er, judge) and one of the subjects of four judicial complaints filed by Sheriff Joe's chief deputy on November 30. (The complaints are linked from this page.) Her response, according to Stern:
The allegations are false, frivolous and slanderous. This is the latest attempt to intimidate the judiciary and interfere with the fair, impartial and timely administration of justice. This attempt will fail. The bench of the Maricopa County Superior Court will continue to provide access to the courts, decide cases based upon the law and not politics, protect the rights of victims and defendants and ensure public safety.
It probably won't shock anyone to know that among the other judges against whom complaints were filed is Gary Donahoe. Of course, they're all also facing that civil racketeering suit filed by Sheriff Joe and the County Attorney.

Some people are calling Maricopa County "Marikafka." I don't think that does it justice.


  1. You really nailed it. Your basic reason was what I didn't articulate in the post you cited, though I should have. Whether there was some kind of criminal activity going on or not, it doesn't matter unless Stoddard constitutionally had enough to do what he did at the time he did it. Finding something now won't do anything to justify it.

  2. I think you have misstated some of the facts: You write (paraphrasing) that the Officer saw the 4 words, copied the document, and then, later, read it and had security concerns. The partial transcript (of the contempt hearing) that I have seen (and news reports, for what they are worth) shows that he saw that 4 words, read the document, what he read caused him concern, and then he had it copied.

  3. Stoddard testified that he had the copy made. Then there's this:

    Q. Once it was returned to you, the original and the copy, what did you do with the original?
    A. I placed the original down in front of Ms. Cuccia. She watched me do it. I took the copy and put it in my pocket.
    Q. Did you read it before you put it in your pocket?
    A. I did not. I folded it up and placed it in my pocket.
    Q. Did you read it later that day?
    A. Later that day, yes. I -- I don't know if it was complete in its entirety, but I definitely briefed through it again and looked to find more key parts.
    Q. When you read it in its entirety, did it validate your concerns that the document was either, as you testified previously, evidence of a future crime or an illegal communication from inside the jail to outside the jail?
    A. No.
    Q. Where there any other things in the letter when you read it in its entirety that gave rise to a security concern?
    A. Yes.

    Transcript p. 57.