Category Archives: Criminal

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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Planet Defendant: Search and Seizure

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own customs and procedures that one should learn. A very important custom and procedure on Planet Defendant is called search and seizure. Search and seizure comes from the Fourth Amendment to the U.S. Constitution: “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 Arizona State Constitution has a similar provision found in Article 2, Sec. 8: “8. Right to privacy Section 8. No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Many constitutional challenges under search and seizure involve warrantless searches. Whether or not a warrantless search and seizure violates the Fourth Amendment and/or Article 2, Sec. 8 depends on the particular facts of a case. Some of the particular facts are: A person’s status such as arrestee, probationer, homeowner, guest, driver, vehicle owner, or passenger; A person’s initial actions that attracted law enforcement attention; A person’s actions during the search and seizure such as consenting or seeming to consent to the search; Law enforcement’s actions during the search and seizure; Nature of what is being searched such as a home, hotel room, business, vehicle, backpack, luggage, or purse; and Whether there is valid probable cause for the search.   If a court determines that the particular facts of a case violate either the Fourth Amendment or Article 2, Sec. 8, it then decides whether the prosecution’s argument(s) that an exception applies so that the warrantless search and seizure is constitutional after all. Some exceptions are search incident to arrest, plain view doctrine, and good faith doctrine. In the 18th century, the Founding Fathers did not have computers, smartphones, gps, and the internet. The United States Supreme Court is continuously redefining what constitutes search and seizure when it comes to modern technology. Law enforcement must have a search warrant in order to search a person’s smartphone according to Riley v. California, 134 S.Ct. 2473 (2014). Law enforcement must also have a warrant to collect location data about cellphone company customers pursuant to Carpenter v. United States, 585 U.S. __ (2018). Finally, law enforcement must obtain a warrant to put a GPS tracking device on a vehicle to monitor the vehicle’s movements according to United States v. Jones, 132 S.Ct. 945 (2012). Search and seizure is a complex constitutional doctrine. If your case has a warrantless search and seizure, you need an experienced defense attorney to determine whether it was constitutional. Law Offices of Gary Rohlwing Criminal Lawyer has over thirty years experience. Call him today for a free consultation.  

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Planet Defendant: Due Process

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own customs and procedures that one should learn. A very important custom and procedure on Planet Defendant is called due process of law. Due process of law comes from the Fifth Amendment to the U.S. Constitution which states that no person shall be deprived of life, liberty, or property without due process of law. The Fifth Amendment applies to Arizona criminal court proceedings because the Fourteenth Amendment states that no state shall deprive a person of life, liberty, or property without due process of law. Moreover, the Arizona State Constitution has a due process clause found in Article 2, Sec. 4. Therefore, due process of law is a federal and state right. Due process of law basically means that a person accused of a crime is treated fairly throughout the criminal proceedings against him. It includes procedural due process such as procedures concerning notice, presenting evidence on his own behalf, and challenging evidence against him. It also includes substantive due process such as fundamental fairness and a meaningful hearing. “Fundamental fairness” and “meaningful hearing” are incapable of precise definition; they are intended to be fuzzy and flexible since it is impossible to accurately define and know the myriad ways that a prosecutor or court could appear to give a person accused of a crime procedural due process yet act in such a way that is fundamentally unfair and renders the hearing or trial meaningless. A court not allowing a person accused of a crime enough time to present his defense would violate the fundamental fairness substantive due process of law. Moreover, a court deliberately ignoring exculpatory evidence presented at trial would violate the meaningful hearing substantive due process of law. Due process of law is generally the right to notice and a meaningful hearing or trial before a fair and impartial judge wherein the accused may present evidence and witnesses in his defense, cross-examine witnesses and challenge evidence against him, and present arguments and law in his defense. The specific procedures used to notify the accused and conduct the hearing or trial are based on the type of hearing or trial. Some examples are: Felony indictment or complaint in superior court gives rise to right to a jury trial; Misdemeanor complaint in city or justice court gives rise to right to a jury or nonjury trial depending on the nature of the charge; Motion for Release on Bail gives rise to a bail release hearing; Petition to revoke probation gives rise to a right to a probation revocation hearing. Designation of an offense as a Class 6 felony instead of a misdemeanor gives rise to the right to receive actual notice and an opportunity to be heard; Motion for an Examination of a Defendant’s Competence to Stand Trial gives rise to a hearing. Interestingly, due process of law does not apply to every type of criminal procedure. … Continue reading

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Planet Defendant: Right to an Attorney

Being charged with a crime can feel like being transported to another world called Planet Defendant. Like all worlds, Planet Defendant has its own customs and procedures that one should learn. A very important custom and procedure on Planet Defendant is called right to an attorney. The Sixth Amendment of the United States Constitution provides that the accused in all criminal prosecutions shall enjoy the right to have the assistance of counsel for his defense. Article 2, Section 24 of the Arizona State Constitution provides that the accused shall have the right to appear and defend by counsel. Federal courts debated for decades whether the Sixth Amendment right to an attorney applied to state court proceedings via the Fourteenth Amendment. In 1963, the United States Supreme Court held that the Sixth Amendment right to an attorney applied to the states in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). https://supreme.justia.com/cases/federal/us/372/335/case.html The Court quoted Mr. Justice Sutherland in Powell v. Alabama on the importance of a lawyer representing an accused: “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.’287 U.S., at 68—69, 53 S.Ct., at 64, 77 L.Ed. 158.” Id. at 344-345. One year later, Arizona beefed up its public defender offices to comply with Gideon v. Wainwright. Indigent defendants charged with felonies are appointed public defenders as are indigent defendants charged with misdemeanors facing jail time. All this is good as long as a person qualifies as “indigent” and the appointed public defender is not overworked or incompetent. The Arizona Court of Appeals found that a nonindigent defendant did not validly waive his right to counsel in State v. Jones, 146 Ariz. 278, 280 (App. 1985): “All that the present record reflects is that the defendant’s appointed attorney was discharged four weeks before trial, that the defendant attempted to raise money to hire an attorney, and that he was told that if he did not hire an attorney he would be required to represent himself. A valid waiver of counsel cannot be established by these facts. Defendant was not warned of the dangers of self-representation. He was not asked if he wished to … Continue reading

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Planet Defendant – Being Charged With a Crime

You’ve never been charged with a crime before. Maybe you can’t afford to pay a civil traffic ticket so your license gets suspended and you get pulled over and cited for driving on a suspended license. Or maybe you have too much to drink and are stopped and cited for DUI. Suddenly, you have to rearrange your world to accommodate court dates and the Arizona criminal justice system. You have to learn a new vocabulary, deal with new people like court staff, prosecutors, and judges, and travel to new places like a city or justice court. You feel like you’ve arrived on a new planet. You have.  Welcome to Planet Defendant! Planet Defendant in the galaxy of the Arizona criminal justice system may seem deceptively simple. Unfortunately, neither driving on a suspended license nor driving under the influence is simple. Take driving on a suspended license. The prosecutor tells you the plea offer. He or she does not give you a copy of your driving records showing that your license was suspended. He or she does not inform you that your driver’s license will probably be suspended again if you plead guilty. Is the plea offered the best under the circumstances? How do you get a copy of your driving records? Who do you talk to at the Arizona Department of Transportation to find out if taking the plea will result in another suspension? Should you go to trial? These are questions only an experienced attorney can help you answer. Driving under the influence is even more complicated. The prosecutor acts like all the evidence against you is damning. Did the police legally obtain your blood sample? Was your blood sample analyzed correctly? Did the officer have probable cause to stop you? Were you really impaired to the slightest degree in your ability to operate a motor vehicle? Will the Arizona Department of Transportation issue you a discretionary suspension in addition to the DUI suspension? Should you take the plea? Should you go to trial? Once again, an experienced attorney can help you answer these questions. Get in touch with the Law Offices of Gary L Rohlwing for any DUI related case. You need an experienced guide to help you navigate Planet Defendant if you are charged with driving on a suspended license or driving under the influence. Attorney Gary Rohlwing is a criminal lawyer and DUI attorney with over three decades of experience. Please call him today for a free consultation.

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