Case Update: Definition of Insanity up to the States

On Thursday, the U.S. Supreme Court, in the case of Clark v. Arizona, upheld Arizona’s insanity test statute, holding that due process does not prohibit Arizona’s use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong. In Clark, a 17-year-old undisputed paranoid schizophrenic shot and killed a Flagstaff police officer. Lawyers for the defense argued that the Defendant believed the police officer he killed was an alien from outer space. They argued that he belonged in a mental hospital rather than a state prison. Prosecutors introduced evidence at trial that Clark had earlier told a friend that he was thinking of creating a disturbance to attract police officers to a particular location so he could shoot them dead. They said the murder of a law-enforcement officer was therefore a premeditated act.

The traditional English rule insanity test established in the landmark M’Naghten case asks about cognitive capacity: whether a mental defect leaves a defendant unable to understand what he was doing. The test also has a second part, an alternative basis for recognizing a defense of insanity, testing moral capacity: whether a mental disease or defect leaves a defendant unable to understand that his action was wrong. The Arizona Legislature at first adopted the full M’Naghten statement, but later dropped the first test, and decided to just go with the later. Currently, the test in Arizona reads that a defendant will not be adjudged insane unless he demonstrates that at the time of the crime, he was afflicted with a mental disease or defect of such severity that he did not know the criminal act was wrong. In reviewing the tests of other states, the Court concluded that the varied tests by each state made clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice.The opinion can be read at: http://www.law.cornell.edu/supct/html/05-5966.ZS.html

Prosecuting nonviolent illegal immigrants in Arizona won't work

Maricopa County Attorney Andrew Thomas and Maricopa County Sheriff Joe Arpaio have recently teamed up to arrest and prosecute illegal immigrants as felons. Arizona's "anti-coyote law," which went into effect last year makes it a fourth degree felony to transport or procure the transportation of illegal immigrants into the state of Arizona. The immigrants themselves are being prosecuted as conspirators in their own transportation. Maricopa County Superior Court Judge Thomas O’Toole recently denied motions by defense attorneys seeking to dismiss the conspiracy charges, allowing the prosecution to go foward.

Now, apparently the goal in all of this is to lower the number of illegal immigrants, by making it known that they will be prosecuted if they are caught. However, as first time offenders, they will most likely only receive probation and be deported. If given prison time, they will merely clog up the prison system with nonviolent offenders. Arizona recently passed Proposition 200, which prevented first and second time nonviolent drug users from receiving prison time. One of the main reasons for this law was to keep nonviolent offenders out of the overcrowded prison system, in order to save taxpayers money. Do those who are arresting and prosecuting these immigrants really believe that these cases will deter those pondering whether they should come over the border illegally? Many of them risk their lives in the first place, traveling through the heat of the desert. Is the threat of probation or minimal prison time really going to deter them?

Why do the immigrants come here illegally in the first place? Because they don't want to wait to apply and they know they will be employed when they arrive. No threat of prosecution, probation, or minimal confinement sentence will deter them. However, not being able to get a job would certaintly be a deterent. So why then is all the plublicity and effort towards the prosecution of the illegals themselves, rather than those who employ them? Is it to misdirect our attention away from the real problem? The truth is that many U.S. companies, agricultural, construction, etc., hire undocumented workers. Many of them do so because they cannot find documented workers who are willing to do the job. The problem is much more complicated and will not be solved by prosecuting the illegals themselves.

For more information on Arizona criminal law, please visit www.win-law.com.

No Constitutional Right to Engage in Prostitution

In the recent Division One opinion from the Arizona court of appeals, State v. Freitag, the court continued with the longstanding interpretation that there is no constitutional right to engage in or solicit prostitution. In the case, the appellant cited the recent U.S. supreme court opinion in Lawrence v. Texas, 59 U.S. 558 (2003), as support for his right to engage in consensual commercial sexual activity. In Lawrence, the U.S. supreme court ruled that a Texas statute prohibiting certain sexual activity between members of the same sex was unconstitutional. However, the Supreme Court didn't declare that this liberty interest was a fundamental right. Instead, the Supreme Court reasoned that the Texas statute furthered no legitimate state interest to justify the intrusion into the personal and private life of the individual. The Arizona court of appeals refused to find a fundamental constitutional right to engage in prostitution. In holding that the law was constitutional, the court reasoned that there was a legitimate interest in criminalizing such activity, in order to control disease, exploitation, and other criminal activity that surrounds the prostitution industry. However, couldn't such legitimate state interests also be fulfilled by regulating the industry, rather than criminalizing it? There are certain portions of Nevada where the industry is regulated, rather than criminalized. Is the law there more to enforce morality, rather than to protect against the legitimate state interests cited?

For further information on Arizona sex offenses, including typical charges, potential punishments, and possible defenses, please visit www.win-law.com.

"I was convicted by a taperecording": The admissibility of 9-1-1 tapes.

It sometimes happens in the context of a domestic violence situation that the accuser calls 9-1-1 to either request help or to report an alleged attack. What happens if the accuser refuses to testify and is unavailable for trial? Can the prosecutor introduce the recorded 9-1-1 tape? Two recent cases have addressed this issue, one from the United States Supreme Court, Davis v. Washington, rendered June 19, 2006, and an earlier decision from Division One of the Arizona Court of Appeals, State v. King, rendered April 20, 2006.

The answer depends upon whether the statements are considered testimonial or not. If testimonial in nature, then the defendant has a right to cross-examine the witness against him/her pursuant to the Sixth Amendment to the U.S. Constitution's Confrontation Clause. In Davis v. Washington, the U.S. Supreme Court held that the 9-1-1 phone statements were not testimonial and that they could be used as evidence. The Court reasoned that a 9-1-1 call is primarily designed to describe current circumstances requiring police assistance. In the case, the accuser on the recording was speaking of events as they were actually happening, rather than describing events that had occured hours earlier. Moreover, the Court reasoned that the accuser was facing an ongoing emergency and that the statements elicited were necessary to enable the police to resolve the present emergency rather than simply to learn what had happened in the past. Finally, the Court looked to the level of formality in the conversation, citing that the accuser provided frantic answers over the phone, in an environment that was not tranquil, or even safe. Thus, the Court found that the circumstances of the accuser's interrogation objectively indicated that its primary purpose was to enable police assistance to meet an ongoing emergency and, therefore, she was not acting as a witness or testifying.

In the recent Arizona case, State v. King, Division One of the Arizona Court of Appeals was also deciding whether a 9-1-1 recording should be admitted into evidence. The Court stated that a primary factor in determining if a hearsay statement is testimonial is whether “a reasonable person in the position of the declarant would objectively foresee that his statement might be used in the investigation or prosecution of a crime.” The Court cited factors to consider in evaluating whether a 9-1-1 call should be treated as testimony. First, each case should be analyzed on a case-by-case basis. Second, 9-1-1 calls that are primarily “loud cries for help” are nontestimonial. These nontestimonial statements are usually made in the context of immediate danger either from physical injury or threat of injury or harm. Third, 9-1-1 calls that are made for the primary purpose of identifying a suspect or reporting evidence in an alleged crime that has already occurred will usually be testimonial.

Further information on the right to confrontation can be found at the very informative blog: http://confrontationright.blogspot.com/ (Professor Richard D. Friedman, University of Michigan, Right to Confrontation blogspot). The opinion in Davis v. Washington can be read at http://www.supremecourtus.gov/opinions/05pdf/05-5224.pdf. The opinion in State v. King can be found at http://www.cofad1.state.az.us/opinionfiles/CR/CR040269.pdf.

Further information on Arizona Criminal Law can be found at www.win-law.com.

Luring a minor, wrong charge brought

We have all seen the TV reporter who pretends to be a minor on myspace. A conversation with an adult eventually turns to the topic of sex and a meeting is arranged, whereby the adult is confronted by the reporter. Can a defendant be found guilty of luring a minor for sex if the person being lured was not a minor? In the recent Arizona Supreme Court case of Mejak v. Granville, a television reporter pretended to be a 13 year-old girl and eventually confronted the defendant after a sexual encounter was arranged. The prosecutor charged the defendant with luring a minor for sex, but not with attempt. After his conviction, the defendant appealed. The Arizona Supreme Court held that a defendant cannot be held criminally liable for a completed crime when it is impossible to commit it. The court explained by analogy that a defendant who possesses what he thinks to be an illegal drug, but is not, cannot be charged with possession, but only attempted possession. Likewise, the defendant should have been charged with the attempted luring of a minor. The Court held that unless the person who pretended to be the minor is a police officer, the person lured must be a minor for the defendant to be guilty of the completed crime of luring a minor. An attempt carries with it less punishment than the completed crime. The crime of luring a minor for sex is a class 3 felony, whereby the attempt could only be a class 4 felony.

For further information on Arizona sexual offenses, their potential punishments, as well as possible defense strategies, please visit www.win-law.com.

Arizona no jail time for first or second possession of drug for personal use

Pursuant to Arizona Proposition 200, those found guilty on a first or second offense for possession of drugs for personal use do not get a confinement sentence. They are afforded the opportunity to receive drug treatment, as they are not seen as violent offenders. Proposition 200 was enacted in response to the growing jail population, which began to be occupied by an ever increasing number of drug offenders.

For a first offense, if all treatment is properly completed, the case can actually be dismissed, leaving no permanent conviction of the individual's record. The enactment of Proposition 200 is a step in the right direction for Arizona's treatment of nonviolent drug offenders. However, further progress needs to be made. Under the laws as presently written, a first time offender who is found in possession of one marijuana cigarette can actually be charged with a class 6 felony. If they fail to complete the drug treatment, and the offense is not later reduced to a class 1 misdemeanor, the person can actually come through it all as being a convicted felon for possession of a small amount of marijuana.

For further information on this topic, as well as other crimes in Arizona, please visit my website at www.win-law.com.

They didn't read me my rights, will the case be dismissed?

It is a common belief that some people have that because the police did not read them their Miranda rights, they cannot be prosecuted. This is not the case. When questioning someone in custody, it is the law that the police must read the suspect certain rights, known as Miranda rights. These rights explain that the individual has the right to remain silent, that anything they say will be used against them in court, and that they have a right to have an attorney present for any questioning, etc. What would happen if a person suspected of a DUI is taken in custody and then interrogated at the station, without the police reading any Miranda rights? After questioning, the person admits to having consumed 12 beers and being drunk while driving. Could they still be prosecuted for a DUI? The answer is yes. Although the accused's' attorney could file a Motion to the court to suppress the confession, which would most likely be granted by the judge, the prosecutor could still go forward with the case with other evidence, other than the confession. This other evidence may consist of physical signs of intoxication, such as slurred speech, the inability to walk a straight line, odor of alcohol, etc. It may also consist of the results of a BAC test.

For further information on crimes and possible punishments in Arizona, please visit my website at www.win-law.com.

What's the difference between a DUI and a DWI?

When the average person hears the phrases DUI or DWI, they don't know the difference, but they do know it somehow involves drinking and driving. For a DUI, which stands for "Driving Under the Influence" of alcohol, the prosecutor must prove that you were under the influence of alcohol or drugs while driving. He or she doesn't have to show the results of a Blood Alcohol Content (BAC) test. The prosecutor will attempt to introduce evidence of how the driver acted in order to prove this offense. Such evidence may include odd driving; glassy, bloodshot eyes; slurring of speech; coordination problems; etc.

On the otherhand, for a DWI, which stands for "Driving While Intoxicated," the prosecutor need only prove that the driver had a Blood Alcohol Content (BAC) of .08 percent or higher within two hours of driving. A DUI carries with it the same punishment as a DWI, both of which are Class 1 Misdemeanors.

So why have two crimes, a DUI and a DWI? As can be seen, a DWI is easier for the prosecutor to prove, as it usually comes down to science, i.e., is the BAC test producing an accurate reading. However, a person can still be charged with a DUI if their BAC was below .08. Take, for example, someone who has never consumed alcohol before and has two drinks within one hour. Generally, the average person will not have a BAC of .08 or higher after consuming two drinks in one hour. However, the inexperienced drinker may still be guilty of a DUI because they are impaired by the alcohol, having never experienced the physcological effects before.

For more information on DUI and DWI, with possible sentences and discussions for other DUI type offenses, please visit my website at www.win-law.com