Public citizen and taxpayer
Former Arizona resident
Signer on petition: Change.org/help-an-innocent-woman
P.O. Box 5791
Auburn, CA 95604
IN THE MATTER OF,
PETITION TO AMEND ETHICAL RULE (ER) 3.8 OF THE
ARIZONA RULES OF PROFESSIONAL CONDUCT, (RULE 42
OF THE ARIZONA RULES OF SUPREME COURT)
Supreme Court No. R-ll-0033
REPLY TO PROSECUTORS' COMMENTS IN OPPOSITION TO THE
PETITION TO AMEND ETHICAL RULE (ER) 3.8 OF THE ARIZONA
RULES OF PROFESSIONAL CONDUCT
Thank you for the opportunity to allow public input before the Honorable Supreme Court of the State of Arizona regarding the Petition to Amend Ethical Rule (ER) 3.8 of the Arizona Rules of Professional Conduct.
As a concerned citizen and taxpayer, former resident of Arizona, and a signer -together with over 39,000 others internationally and across the United States -to a petition referencing a high-profile wrongful conviction in Arizona.\1 Despite denials to the contrary, we know that there are more wrongful convictions on the horizon.\2
For informed citizenry concerned about public policy issues, such as wrongful conviction, mass encarceration, lack of due process and fair trials, lack of integrity in public offices and lack of accountability of same, we can no longer believe lofty, high-minded empty claims. It is becoming more difficult for some elected officials to continue deceiving the public.
As informed and concerned citizens, we instantly communicate and share information online, with and about, the National Registry of Exonerations;\3 read yesterday's New York Times Sunday Review for the latest commentary on Brady violations;\4 or review some of the first Arizona newspapers informing the public about Ethical Rules 3.8;\5 or, read empirical studies from universities like that of John F. Pfaff, Fordham University School of Law.\6
Many of us watched the live-streaming broadcast of the Arizona Supreme Court proceedings over th twenty-six day (September 12, 2011 - November 2, 2011)) Disciplinary Hearing which led to the disbarment of former Maricopa County Attorney, Andrew Thomas and his Chief Deputy.\7
It is imperative to consider the harm to the public that 'rogue' prosecutors with absolute authority and immunity can inflict. In the case of Andrew Thomas, while campaigning for the state office of Attorney General in 2010, boasting publicly in an interview with the The Arizona Republic, that while he was Maricopa County Attorney he "...oversaw the prosecution of approximately 200,000 felony cases."\8 Considering that statement, in view of the facts revealed by through the disbarment proceedings against Thomas, the public has a very graphic picture of where unchecked power csn lead. The following are excerpts taken from the Hearing Panel's detailed and expansive findings dated April 10, 2010:\9
* "[I]t appears he [Thomas]lavishly spent millions over his budget demanding to retain the right to hire the special lawyers he chose."
* "[H]e [Thomas] believed he was right. Clearly, the startling absence of any evidence in these prosecutions did not hinder the flex of that power."
* "they [Respondents] prosecuted innocent people, without evidence, and did not blink."
* "This case is regrettable proof that the absence of ethical behavior fuels uncontrollable actions."
* "The harm they [Respondents] caused is incalculable."
* "...a story of public trust dishonored, desecrated snd defiled."
If Thomas' legacy were the last the public would hear about corruption in public office, we might all feel a sense of relief, but another tidal wave of condemnation is heading toward the very same Maricopa County Attorney's Office in the form of a scathing criticism coming from the United States Court of Appeals for the Ninth Circuit in an Opinion of Chief Judge Alex Kozinski dated March 14, 2013, regarding the suppression of evidence in the Habeas Corpus/ Death Penalty case of Debra Jean Milke.\10
For any public official in Maricopa County to make the bold statement that the Petitioners failed to provide even "one" example of a wrongful conviction for suppression of evidence, knowing the immediate past history of the former Maricopa County Attorney, Andrew Thomas' disgraceful disbarment just weeks prior to filing their opposition to ER 3.8, does not deserve further comment.
We applaud the Texas State legislature and the Texas Governor for passing and signing the Michael Morton Act\11 which will become law this year on Septembe 1st. Arizona needs to move in the same direction.
We deserve to see practical, ethicsl steps taken that will underscore the "duty of the prosecutor to seek justice, not merely to convict." ER 3.8 is an advance toward that goal; but, more must be done to remedy the conviction of innocent individuals.
Respectfully submitted this 20th day of May, 2013
By: Mary E. Osorio
"Death Row: Debra Milke's Convictions Overturned in Son's Murder, After Two Decades on Death Row" by Matthew Hendley (March 14, 2013)
3 National Registry of Exonerations (https://wrongfulconvictionsblog.org)
4 The New York Times Sunday Review, "Open-Discovery Rules Won't Necessarily Stop Prosecutors from Cheating" (May 19, 2013)
5 Sonoran News,"Hope on the Horiaon for Wrongfully Convicted" by Linda Bentley (April 2-8, 2008);
Phoenix New Times, "Andrew Thomas Ignores Evidence That Courtney Bisbee Was Wrongfully Convicted of Child Molestation as Supporters Work to Free Her" by Stephen Lemons. (October 30, 2008) [Note: this is Pulitzer Prize investigative reporting, thank you!]
Phoenix New Times (blog),"Courtney Bisbee and County Pettifogger Gerald R. Grant" by Stephen Lemons (February 25, 2009)
6 John F. Pfaff, Fordham University School of Law (July 12, 2011)
7 Before the Presiding Disciplinary Judge of the Supreme Court of Arizona,"Opinion and Order Imposing Sanctions" (April 10, 2012)
8 The Arizona Republic, azcentral.com (Live Talk from June 9: Andrew Thomas) (June 9, 2010)(11:00AM)
9 Id. Hearing Panel "Opinion and Order Imposing Sanctions" (April 10, 2012)
10 United States Court of Appeals for the Ninth Circuit,"Opinion of Chief Judge Alex Kozinski" (March 14, 2013)
11 The Texas Tribune, "Perry Signs Michael Morton Act" (March 14, 2013)