A class action lawsuit filed Wednesday in a federal court in Phoenix concerning the Maricopa County Attorney’s Office use of an Early Disposition Court (EDC) to fast-track many prosecutions to a resolution within days and weeks rather than months by threatening defendants who assert their legal right to due process is not the first time such a program has been questioned in Arizona.
The lawsuit filed by the ACLU on behalf of the Arizona Attorneys for Criminal Justice and two individuals alleges that defendants are subjected to a “Retaliation Policy” if they assert their legal right to a preliminary hearing or to full disclosure of the evidence against them.
And the plaintiffs point to wording contained on most EDC plea agreements that “any subsequent offer tendered will be substantially harsher” as evidence that some prosecutors put convictions ahead of due process.
“It does not matter what the charges are or what the accused person’s criminal history is, if any. It does not matter if the person simply wants more time to investigate their
case. It does not even matter if the person might be innocent,” the complaint alleges.
MCAO openly admits on its website that the purpose of the policy is speed, not justice. MCAO’s stated goal in EDC cases is to mitigate case backlogs ‘by resolving them as quickly as possible.’ It is no surprise, then, that many people succumb to the Retaliation Policy, forego their rights, and plead out, rather than face a substantially harsher offer.”
The plaintiffs are asking a federal judge to declare MCAO’s policy of harsher follow-up plea offers in EDC cases violates the Sixth and Fourteenth Amendments. They also want a permanent injunction ordered to prohibit MCAO from continuing the practice.
But the concerns brought up by the ACLU’s lawsuit are not new in Arizona.
In 2019, several defense attorneys in Cochise County traveled to Phoenix for a meeting of the Attorney Ethics Advisory Committee. Their purpose was to address ethical concerns with the growing use of an Early Resolution Court (ERC) in the Cochise County judicial system.
“ERC tramples upon the constitutional rights guaranteed every accused Arizona citizen. ERC circumvents the due process protections laid out in the Arizona Rules of Criminal Procedure,” the attorneys wrote in a 39-page memorandum to the Ethics Committee.
The memo noted the accused defendants in Cochise County must often decide within days of being arrested whether to accept an initial plea deal “without informed advice” from a defense attorney before a prosecutor “moves forward with treating the defendant more harshly, if they reject the ERC proposal.”
According to the memo, if a defense attorney assigned to an ERC cases wishes to receive disclosure of evidence, conduct investigation, acquire mitigation evidence, or engage in “further discussion and explanation regarding legal issues/possible defenses” then the defendant almost always has to reject the ERC plea offer from the Cochise County Attorney’s Office.
“Defense counsel must also advise the defendant that any rejection of an ERC plea agreement will result in an increase in severity of any post indictment plea agreement, if, one is offered at all,” the memo states.
In the end, the Committee punted on the ethical questions by telling the Cochise County attorneys to address their concerns locally, despite the attorneys’ dire warning that “ERC turns the criminal justice system on its head” by forgoing a system predicated on the proving a defendant committed an offense for a new system designed to pressure defendants “to plead guilty to an ERC proposal, or else.”
Another problem cited with Cochise County’s ERC system was that defense attorneys may or may not have an opportunity to meet with the client-defendant prior to the initial ERC hearing where an attorney would be asked to make recommendation on whether a client should take a plea offer, even if the attorney had not yet seen the police report or probable cause statement.
The memo not only addressed ERC due process issues from a defendant’s perspective. It also pointed to several professional concerns for the defense attorneys assigned to represent an ERC defendant.
Among those concerns were Ethical Rule 1.1 which states a lawyer “shall provide competent representation to the client,” that requires “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”
The memo pointed out a judge “must generally presume that counsel has exercised reasonable professional conduct” but that no such presumption is warranted when a lawyer advises a client to plea bargain when the attorney “has not investigated because such conduct is always unreasonable.”
But the design of ERC “makes a thorough review of the case impossible,” the memo stated. “The process makes it difficult, and often impossible, to perform a meaningful analysis regarding whether the evidence gathered against the defendant is legally sufficient, or was obtained in violation of the U.S. and/or Arizona Constitutions.”
But it was not only ethical concerns of defense attorneys that were pointed out to the Ethics Committee. The 2019 memo also noted it is “professional misconduct” for any lawyer to engage in conduct that is prejudicial to the administration of justice.
“As one clear example, ERC offers are routinely made by prosecutors who have not received or reviewed the written application for a search warrant, the search warrant itself, and the return on a search warrant. Decision making without sufficient and necessary case evidence is clearly prejudicial to the administration of justice,” the memo stated.
After considering the memo and the attorneys’ comments, the committee declined to render an opinion about Cochise County’s ERC process, even though some members acknowledged the perception the program “inverts” the presumption of innocence. Instead, the defense attorneys were advised to address their concerns through the Cochise County judicial system.
The ERC system is still in use in Cochise County with only minor changes since 2019. Although county-employed defense attorneys are required to represent clients in ERC cases, some private attorneys in the county refuse to do so because of the ethical issues.
