Author Archives: Gary Rohlwing

Planet Defendant: Diplomacy

Diplomacy is a lost art both in science fiction and the real world. The Star Trek and Star Wars movies deal with the results of failed diplomacy: armed conflicts and wars. In the real world, we see more and more failures of diplomacy in our country. One example is our fractured political process where Democrats and Republicans want to bully each other instead of engaging in diplomacy to solve pressing problems. If you try to represent yourself after being charged with a crime, you will have to be a diplomat on Planet Defendant. You will have to diplomatically interact with a prosecutor, a judge, and court personnel. If you go to trial, you will have to diplomatically interact with witnesses and a jury. “Diplomatically interact” means that you must advocate on your own behalf without angering, confusing or alienating anyone. Before trial, the most important person is the prosecutor. The prosecutor decides what to charge and whether or not to offer a plea agreement. The prosecutor is a human being with feelings like everyone else. Bullying or blowing your top in person or via email is not diplomatic. You run a huge risk that the prosecutor will take offense and refuse to change a plea or offer a plea at all. The prosecutor’s offense probably would spill over and infect your trial resulting in a guilty verdict with a stiff sentence. Another important area of pretrial diplomacy concerns the judge. The judge may issue pretrial orders such as requiring your appearance at court dates or requiring you to be fingerprinted. You may find these orders silly, inconvenient, and/or confusing. That’s no excuse to ignore them. You must diplomatically obey the judge’s pretrial orders. It may be tempting to vent your feelings on court personnel.  Don’t do it! Court personnel are there to process defendants and paperwork through the criminal justice system.  They are not therapists or friends. You must deal with them diplomatically. Interviewing witnesses before trial requires an intense level of diplomacy. It’s intense because every witness is unique and has his or her own attitude towards you and testifying. Some witnesses want to help you and don’t mind testifying. Others don’t want to be interviewed and don’t want to testify. You will need all the diplomacy you can muster to deal with these witnesses. At trial, the judge will expect you to perform as if you really are a defense attorney. Your diplomacy before the judge will be on display to the jury and the prosecutor. The prosecutor will probably do something in his or her presentation of the case that will irritate, anger, and/or confuse you which will require more diplomacy on your part. The jury ultimately is the most important because they will decide your guilt or innocence. As with witnesses, every juror is unique and has his or her own attitude towards jury duty and your case.  You must diplomatically balance your dual roles of defendant and defense attorney before the jury. Diplomacy when representing … Continue reading

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New 2018 Arizona Criminal Laws

The Arizona Legislature adjourned on May 3, 2018. Most of the new laws they passed take effect on August 3, 2018.  The legislature created a new civil traffic violation and two new vehicular crimes. They also amended a key definition and fixed a problem for prisoners. A.R.S. §28-694 was added to make it a civil traffic violation to drive the wrong way on a controlled access highway. A person found responsible is subject to a civil penalty of five hundred dollars and must attend and successfully complete approved traffic survival school educational sessions that are designed to improve the safety and habits of drivers. The legislature also amended the aggravated driving under the influence statute, A.R.S. §28-1383, to make driving the wrong way on a highway while driving under the influence a felony.   A.R.S. §28-675 was amended to make it a Class 3 felony for a person who caused a death by use of a vehicle if his or her privilege to drive was suspended due to driving under the influence or  failure to provide proof of financial responsibility. The sentence shall be consecutive to any other sentence imposed and restitution may be ordered. The term of imprisonment for this new felony is 2 to 8.75 years.   A.R.S. §13-1401 definition of “sexual contact” was amended by adding that it “does not include direct or indirect touching or manipulating during caretaking responsibilities, or interactions with a minor or vulnerable adult that an objective, reasonable person would recognize as normal and reasonable under the circumstances.”   A.R.S. §13-717 was added to fix the problem of illusory parole. The law reads: “A.  Notwithstanding any other law, a person who was convicted of first degree murder and who was sentenced to life with the possibility of parole after serving a minimum number of calendar years pursuant to a plea agreement that contained a stipulation to parole eligibility is eligible for parole after serving the minimum number of calendar years that is specified in the sentence.  If granted parole, the person shall remain on parole for the remainder of the person’s life except that the person’s parole may be revoked pursuant to section 31-415. B. This section applies to a defendant who entered into a plea agreement that stipulated to parole eligibility and who was sentenced at any time from and after January 1, 1994 and on or before the effective date of this section.” If you are charged with one of the new crimes, you need an experienced defense attorney to fight for you.  Attorney Gary Rohlwing has been representing people for over 30 years. Please call him today for a free consultation.

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FOUR GUIDING PRINCIPLES OF THE EIGHTH AMENDMENT

The Eighth Amendment to the U.S. Constitution prohibits the infliction of cruel and unusual punishments.  Prisoners on death row argue that the death penalty violates the Eighth Amendment.  The United States Supreme Court has held that it violates the Eighth Amendment to execute prisoners who have intellectual disabilities or who committed their crimes when they were juveniles.  Prisoners also often argue that various prison punishments or conditions violate the Eighth Amendment.  Solitary confinement is a prison punishment that may one day be found to violate the Eighth Amendment. The Eighth Amendment does not give examples of cruel and unusual punishment nor does it discuss how to determine if a particular punishment is cruel and unusual.  In his concurring opinion, U.S. Supreme Court Justice Brennan discussed four guiding principles used to determine whether a punishment violates the 8th Amendment in Furman v. Georgia, 408 U.S. 238 (1972) https://supreme.justia.com/cases/federal/us/408/238/case.html: “The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. Pain, certainly, may be a factor in the judgment. . . “  408 U.S. 238, 271. . . . More than the presence of pain, however, is comprehended in the judgment that the extreme severity of a punishment makes it degrading to the dignity of human beings. The barbaric punishments condemned by history, ‘punishments which inflict torture, such as the rack, the thumb-screw, the iron boot, the stretching of limbs, and the like,’ are, of course, ‘attended with acute pain and suffering.’ O’Neil v. Vermont, 144 U.S. 323, 339, 12 S.Ct. 693, 699, 36 L.Ed. 450 (1892) (Field, J., dissenting). When we consider why they have been condemned, however, we realize that the pain involved is not the only reason. The true significance of these punishments is that they treat members of the human race as nonhumans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.  408 U.S. 238, 272-273. . . . In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the Clause—that the State must not arbitrarily inflict a severe punishment. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others. Indeed, the very words ‘cruel and unusual punishments’ imply condemnation of the arbitrary infliction of severe punishments. . . 408 U.S. 238, 274. . . .   A third principle inherent in the Clause is that a severe punishment must not be unacceptable to contemporary society. Rejection by society, of course, is a strong indication that a severe punishment does not comport with human dignity. In applying this principle, however, we must make certain that the judicial determination is as objective as possible.  408 U.S. 238, 277. . . . The final principle inherent in the … Continue reading

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Hidalgo v. Arizona: Challenging Arizona’s Death Penalty Schem

The Arizona Revised Statutes state that first degree murder and any murder committed during the commission of 22 different felonies are eligible for the death penalty.  A.R.S. § 13-751 sets out fourteen aggravating circumstances for a jury to consider. If a jury finds at least one of the aggravating circumstances and then determines that there are no mitigating circumstances sufficiently substantial to call for leniency, it shall impose the death penalty.  The Arizona Legislature established the aggravating circumstances in order to comply with the Eighth Amendment as interpreted by the United States Supreme Court in Lowenfield v. Phelps, 484 U.S. 231 (1988). Abel Hidalgo killed two people in Maricopa County.  He pled guilty but a jury decided whether he should receive the death penalty.  The jury found four aggravating factors and sentenced him to death. The Arizona Supreme Court affirmed his death sentence.  These facts and the arguments below are from his Petition for a Writ of Certiorari to the United States Supreme Court filed on August 14, 2017 which is found at http://www.scotusblog.com/wp-content/uploads/2017/08/17-251-petition.pdf Hidalgo argued that A.R.S. § 13-751 violated the Eighth Amendment because it didn’t narrow the class of persons eligible for the death penalty, arbitrarily enabled racial disparities, and relied on county resources (or lack thereof) instead of characteristics of the offense: “. . . Petitioner in this case set out evidence demonstrating that the aggravating circumstances serve no narrowing function at all because “virtually every first degree murder case [in Arizona] presents facts that could support at least one [of the legislature’s] aggravating circumstance[s].”  Pet. App. 11a. The Arizona Supreme Court did not dispute the accuracy of this claim; it approved the trial court’s decision to “deny[] an evidentiary hearing and instead [to] assume [] the truth of Hidalgo’s factual assertions.” Id. at 4a-7a.  But it held that Arizona’s capital sentencing scheme is nonetheless consistent with the Eighth Amendment.  That holding is plainly incompatible with this Court’s insistence that a statutory scheme must limit the class of death-eligible defendants.  See, e.g., Zant, 462 U.S. at 878.  (p.p. 12-13). “First, the arbitrariness of Arizona’s scheme enables troubling racial disparities.  Arizona follows the national trend in that “individuals accused of murdering white victims, as opposed to black or other minority victims, are more likely to receive the death penalty.”  Glossip v. Gross, 135 S. Ct. 2726, 2760 (2015) (Breyer, J., dissenting).  One study published in 1997 demonstrated that “white-victim homicides in Arizona are much more likely to result in death sentences than minority-victim homicides.”  Ernie Thomson, Discrimination and the Death Penalty in Arizona, 22 Crim. Just. Rev. 65, 73 (1997).  “Minorities accused of killing whites are more than three times as likely to be sentenced to death as minorities accused of killing other minorities. (6.7% vs. 2.0%).”  Id.  And a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a whit man accused of killing a Hispanic victim.  See Id. These problems have persisted since that study was … Continue reading

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Arizona Town Hall: Why Do People Return to Prison?

Arizona has turned its attention to re-entry and recidivism of former prisoners.  One organization that is studying the issue is Arizona Town Hall. The following is taken from “Re-Entry and Recidivism” by Kevin Wright, PhD, Criminal Justice in Arizona 2018, Arizona Town Hall http://www.aztownhall.org/resources/Documents/111%20Criminal%20Justice%20in%20Arizona%20Background%20Report%20web.pdf Why do people return to prison?  Traditional explanations such as “crime as a choice” and “crime is all they know” don’t really get us that far.  In the summer of 2017, researchers from Arizona State University worked with incarcerated men to develop and implement a study that would ask them why they were in prison.  They completed 409 interviews in two months at the medium-security East Unit of the Arizona State Prison Complex at Florence. The report was shared with the Governor’s Office. Early in the interview, the incarcerated men were asked:  Why do you think most people come back to prison. Several themes emerged: 44% said a lack of resources or programming contributed to recidivism.  One respondent stated, “Because they are not adequately prepared for reentry into society, because they have not made successful and dedicated transformation from their old lifestyle to one that would keep them out of prison.” 27% said drug and alcohol use.  As a respondent remarked, “A lot of felons have serious drug addiction problems. . . When addicts get out, there aren’t any affordable treatment options.” The third most common theme was an inability to change thinking and behavior or resorting to comfort.  This was best captured by the respondent who said: “Lack of education, skills, and a desire to succeed. They stay in here for a long time, get complacent and [there isn’t] any real type of job training to teach them how to be successful. So, they revert back to crime (what they know) because they’re unprepared for society. … Prison isn’t much of a deterrent anymore when someone isn’t taught how to live.” Other themes that emerged included lack of a support system/mentor (16 percent), lack of education (15 percent), money issues (14 percent), stigma (14 percent), and peers, neighborhood or family environment (12 percent). 62% of the 409 men interviewed were recidivists.  Compared to first time prisoners, they were more likely to believe they had a substance abuse problem (52% to 35%) and more likely to not know where they would live upon release (31% to 17%).  They were statistically significantly more likely to report needing assistance with obtaining identification, transportation, housing, childcare, family and friend support, meals, employment, mentorship, substance abuse, healthcare and religious services. If you are a former prisoner and facing new charges, you need an experienced defense attorney to represent you.  Attorney Gary Rohlwing has over three decades of experience representing former prisoners facing new charges. Please call him today for a free consultation.

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