bill montgomery

Maricopa County Attorney Bans iPhones for Prosecutors

Maricopa County Attorney Bill MontgomeryWith Apple fighting the FBI about unlocking the San Bernardino’s shooters iPhone and creating a backdoor for the government to unlock all iPhones, Maricopa County Attorney Bill Montgomery said today that his office will no longer provide iPhones to prosecutors and other employees.

“Apple’s refusal to cooperate with a legitimate law enforcement investigation to unlock a phone used by terrorists puts Apple on the side of terrorists instead of on the side of public safety,” Montgomery said. “Positioning their refusal to cooperate as having anything to do with privacy interests is a corporate PR stunt and ignores the Fourth Amendment protections afforded by our Constitution.”

Citing privacy concerns, Apple is standing up to the U.S government and the National Security Agency by not allowing them backdoor access to all iPhones.

With citizens around the nation using their iPhones for private conversations, photos, music, notes, calendars, contacts, finances and health, government access to iPhones could be viewed as an invasion of privacy.

New Arizona Supreme Court Rule Change Holds Prosecutors to Higher Standard

According to an Arizona Supreme Court enactment updating Ethical Rule 3.8, prosecutors are required to turn over to defense attorneys any evidence showing the possible innocence of a convicted person, and prosecutors must take it upon themselves to get the conviction reversed if they find “clear and convincing evidence” proving the defendant’s innocence, the Arizona Republic reports.

The role of the prosecutor is to represent all citizens, “and therefore they, like judges, are held to higher standard and should help remedy any errors that result from our sometimes imperfect system of justice,” Supreme Court and Chief Rebecca White Berch wrote in an email to the Republic.

Berch said that Ethical Rule 3.8 supports the notion that it is the duty of prosecutors to act as “ministers of justice” who work to represent all citizens fairly rather than seek convictions at all costs; however, Maricopa County Attorney Bill Montgomery and other attorneys are rejecting the new rule.

A statement made under Montgomery’s name claims that the change is unnecessary.

“We have no real-world examples of prosecutors discovering evidence of the nature that would trigger a duty under this rule,” because “prosecutors in Arizona already fully embrace their roles as ministers of justice when (it) comes to righting wrongful convictions,” the Republic reports.

Montgomery’s objection cited that prosecutors were already reexamining their convictions. An example in his file said that his office was recently working to drop charges against people pleading guilty to “huffing,” the act of intentionally inhaling vapors as a way to get high, because the law had been misinterpreted.

Although this may be true in regards to those specific cases, the Republic reported a case that challenges the perception that prosecutors are diligent when it comes to turning over exculpatory evidence.

Henry Hall was sentenced to death in 1999 for the murder of Ted Lindberry who was killed due to a blow to the head by Hall and dumped in the desert, according to testimony made by a jailhouse informant who claimed Hall had described the events to him.

In 2001 Hall’s conviction was overturned by the Arizona Supreme Court due to juror misconduct, and Lindberry’s remains, which weren’t found at the time of Hall’s conviction, were discovered in a location differing from the informant’s testimony with an intact skull.

Despite the promising new evidence, a series of unfavorable events followed for Hall. Lindberry’s remains were promptly returned to his family and cremated, but Hall’s defense attorney didn’t know about the discovery of the body and the condition of the skull until about a year after the cremation, according to court documents, making the exculpatory evidence virtually useless.

During retrial, prosecutors wanted to use the informant’s original testimony, but Superior Court Judge Roland Steinle didn’t allow it because the information was proved false and the informant had died. Steinle did allow the defense to inform the jury of the situation with the discovered evidence as punishment to prosecutors for not previously disclosing such crucial information, but that didn’t necessarily help Hall or the defense.

Prosecutors were not satisfied with the idea of losing a conviction and took the case to the Arizona Court of Appeals, still insisting on using the original, false testimony. The appeal and a request by the defense to dismiss the case for prosecutorial misconduct were denied in 2011.

There’s no guaranteeing that Hall’s conviction would have been overturned if Rule 3.8 existed at the time, but the muddled situation wouldn’t have been an issue because prosecutors would have known how to properly and fairly proceed with the new evidence.

Hall, having already spent 13 years in prison, was offered by prosecutors a plea to second-degree murder and a prison sentence of another 16 years.

Citizens rely on those in power to fight for justice under all circumstances, and although it’s a complicated and controversial process, amendments to the system and additional ethical rules and improvements like Rule 3.8 will help law enforcement, prosecutors and others work more transparently in the future.

Arizona Prosecutor Misconduct Rarely Disciplined

Arizona prosecutors frequently find themselves under the magnifying glass for their behavior and tactics in court, and the results of this type of close examination tend to reveal several forms of error and misconduct during trial.

Although prosecutor faults are identified, they are very rarely corrected. In fact, many of the trials that include prosecutor misconduct remain unaffected and unchanged despite the recognition of errors during trial. In fact, prosecutors themselves do not usually face any serious consequences.

According to a report by the Arizona Republic reviewing every Arizona Supreme Court opinion on death sentences since 2002, prosecutor misconduct has been alleged in half of all capital cases ending in death sentences.

“Of 82 cases statewide, prosecutorial misconduct was alleged on appeal by defense attorneys in 42 and the court found improprieties or outright misconduct in 18 instances. But only two of those death sentences were reversed because of the improprieties, and only two prosecutors were disciplined,” The Arizona Republic reports.

The seriousness of these offenses ranged from excessive sarcasm to much more serious issues such as failing to disclose evidence that might have benefitted the defendant and introducing false testimony. Most of these offenses, regardless of their severity, were identified as “harmless error” by the court.

Harmless error is defined by the Federal Evidence Review as the recognition of mistakes made in court that are not severe enough to warrant retrial.

Several examples of this can be seen in Arizona courts, but their consideration is dependent upon judges at the appellate level to decide what information may have influenced a lay person’s opinion of guilt or innocence.

The first American prosecutor to be disbarred for misconduct during a capital case occurred in Arizona in 2004 when Pima County prosecutor Ken Peasley was caught presenting testimony he knew to be false. It took seven years to disbar Peasley, the Arizona Republic said.

In 2012, Andrew Thomas and Lisa Aubuchon, a former Maricopa County attorney and one of his deputies at the time, were disbarred for “filing criminal charges and a civil racketeering lawsuit against Superior Court judges and Maricopa County officials to further Thomas’ political goals,” the Arizona Republic said. Neither was charged criminally, and more than $5 million was spent by the county in legal fees to settle lawsuits from judges and officials.

Most recently, the Pinal County Chief Deputy Richard Wintory has been the focus of an investigation by the State Bar of Arizona for inappropriate contact with a member of a murder suspect’s defense team. He will most likely face minor sanctions from the State Bar, the Arizona Republic said.

In response to these prosecutorial issues, Maricopa County Attorney Bill Montgomery said he has increased prosecutor training and maintains an ethical committee to keep track of the actions of prosecutors, judges and defense attorneys. He objects to the addition of a newly proposed ethical rule requiring prosecutors to report if they learn of new evidence after a conviction that may have been exculpatory.

However, Montgomery has also said that he is unaware of a lot of prosecutor misconduct and often times does not believe it is his duty to keep them accountable.

“The attorneys are trying the case, I’m not going to step in,” he said. “They’re on their own. And if they need to be put in their place, that’s the job of the judge. It’s the job of the defense attorney to object.”

There is evidence that prosecutors are aware of the lack of discipline for their errors in court.

“In the 30 years I’ve been a prosecutor, I’ve had many people file complaints and lawsuits against me, but I’ve never been disciplined,” Wintory said regarding his own misconduct throughout his career.

While mistakes and misconduct occur, having an experienced and knowledgeable attorney can help even the playing field.

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