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Last Post 28 Oct 2013 04:23 PM by  Thom
R-11-0033 Petition to Amend ER 3.8, Rule 42, Arizona Rules of the Supreme Court
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Author Messages
KSwisher
Posts:

--
02 Nov 2011 01:26 AM
    R-11-0033

    PETITION TO AMEND ER 3.8, RULE 42, ARIZONA RULES OF THE SUPREME COURT

    Would incorporate the ABA's amendment to Model Rule 3.8, which provides ethical guidance to prosecutors in situations in which an innocent person may have been convicted.

    Petitioners:
    Larry Hammond, 4049
    ARIZONA JUSTICE PROJECT
    c/o Sandra Day O’Connor College of Law
    PO Box 875920
    Tempe, Arizona 85287-5920
    Phone: 602.640.9361
    Email: lhammond@omlaw.com

    Keith Swisher, 23493
    PHOENIX SCHOOL OF LAW
    4041 North Central Avenue
    Suite 100
    Phoenix, Arizona 85012
    Phone: 602.432.8464
    Email: kswisher@phoenixlaw.edu

    Karen Wilkinson, 14095
    OFFICE OF THE FEDERAL PUBLIC DEFENDER
    850 West Adams Street
    Phoenix, Arizona 85007-2730
    Phone: 602.382.2700
    Email: Karen.Wilkinson@fd.org

    Filed November 2, 2011.

    CONTINUED. On August 28, 2013, the Court issued the following Order:

    IT IS ORDERED that the attached amendments to Rule 42, ER 3.8 and 3.10, Rules of the Supreme Court, be reopened for comment until October 25, 2013. [SEE FIRST ATTACHMENT BELOW]

    COMMENTS DUE October 25, 2013.


    DESCRIPTION OF ATTACHMENTS (BELOW)
    Attachment 1: Supreme Court Order dated August 28, 2013 reopening this matter for comment on the attachment to order
    Attachment 2: Supreme Court Order dated August 30, 2012, reopening petition for comment on staff draft
    Attachment 3: Original Petition to Amend ER 3.8, Arizona Rules of Professional Conduct

    ADOPTED as modified, effective January 1, 2014.
    Attachments
    MHarrison
    Posts:

    --
    04 May 2012 05:53 PM
    R-11-0033

    COMMENT OF LAWYERS IN SUPPORT OF PETITION TO AMEND ER 3.8 OF THE ARIZONA RULES OF PROFESSIONAL CONDUCT.

    Commenters:
    Mark I. Harrison, Esq.
    Terry Goddard, Esq.
    Grant Woods, Esq.
    Chief Justice Stanley G. Feldman (ret.)
    Chief Justice Charles E. "Bud" Jones (ret.)
    Hon. Robert D. Myers (ret.)
    Chief Justice Thomas A. Zlaket (ret.)

    c/o Mark I. Harrison, No. 001226
    Osborn Maledon, PA
    2929 N Central Avenue, Suite 2100
    Phoenix, AZ 85012
    Phone: 602-640-9324
    Fax: 602-640-9050
    mharrison@omlaw.com

    Filed: May 4, 2012

    Attachments
    ecrowley
    Posts:

    --
    19 May 2012 02:46 PM
    John A. Furlong, Bar No. 018356
    General Counsel
    STATE BAR OF ARIZONA
    4201 North 24th Street, Suite 100
    Phoenix, Arizona 85016-6266
    Telephone: (602) 252-4804
    John.Furlong@staff.azbar.org



    Attachment 1: Comment of the State Bar of Arizona
    Attachment 2: Appendices A and B to Comment
    Attachments
    Gary.Restaino@usdoj.gov
    Posts:

    --
    20 May 2012 06:14 PM
    COMMENTS OF THE U.S. ATTORNEY'S OFFICE IN OPPOSITION TO THE PROPOSED MODIFICATIONS TO ER 3.8

    Ann Birmingham Scheel
    Arizona Bar No. 011399
    Acting United States Attorney
    District of Arizona
    40 N. Central Avenue
    Suite 1200
    Phoenix, Arizona 85004
    Tel: (602) 514-7518
    Ann.Scheel@usdoj.gov

    John R. Evans
    Arizona Bar No. 05797
    Chief, Tucson Criminal Division
    District of Arizona
    405 W. Congress Street
    Tucson, Arizona
    Tel: (520) 620-7514
    John.Evans2@usdoj.gov

    Gary M. Restaino
    Arizona Bar No. 017450
    Chief, Phoenix Criminal Division
    District of Arizona
    40 N. Central Avenue
    Suite 1200
    Phoenix, Arizona 85004
    Tel: (602) 514-7756
    Gary.Restaino@usdoj.gov
    Attachments
    John Canby
    Posts:

    --
    21 May 2012 12:18 PM
    ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE
    2340 W. Ray Road, Suite 1
    Chandler, Ariz. 85224
    (480) 812-1700
    JOHN A. CANBY, SB#010574
    john.canby@old.maricopa.gov
    Attachments
    domanico
    Posts:

    --
    21 May 2012 12:25 PM
    WILLIAM G. MONTGOMERY
    MARICOPA COUNTY ATTORNEY
    (FIRM STATE BAR NO. 00032000)

    MARK C. FAULL
    CHIEF DEPUTY
    301 WEST JEFFERSON STREET, SUITE 800
    PHOENIX, ARIZONA 85003
    TELEPHONE: (602) 506-3800
    (STATE BAR NUMBER 011474
    domanico@mcao.maricopa.gov

    Attachments
    kmac1411
    Posts:

    --
    21 May 2012 01:39 PM
    Sheila S. Polk, Chair, ARIZONA PROSECUTING ATTORNEYS' ADVISORY COUNCIL;
    Elizabeth Ortiz, APAAC Executive Director
    Mailing Address: APAAC, 1951 W. Camelback Road, Suite 202, Phoenix, AZ, 85015
    Phone Number: 602-542-7222
    FAX Number: 602-274-4215
    Email Address: kim.maceachern@apaac.az.gov
    Bar Number: Sheila S. Polk, Bar Number 007514
    Elizabeth Ortiz, Bar Number 012838
    Attachments
    jlines
    Posts:

    --
    21 May 2012 06:35 PM
    BARBARA LAWALL
    32 N. Stone, 14th Floor
    Tucson, AZ 85701
    (520)740-5600
    (520)791-3946
    barbara.lawall@pcao.pima.gov
    004906
    Attachments
    KSwisher
    Posts:

    --
    03 Jul 2012 04:23 PM
    PETITIONERS' REPLY TO PROSECUTORS' COMMENTS IN OPPOSITION TO ADOPTING ABA'S AMENDMENTS TO MODEL RULE 3.8.

    Petitioners:
    Larry Hammond, 4049
    ARIZONA JUSTICE PROJECT
    c/o Sandra Day O’Connor College of Law
    PO Box 875920
    Tempe, Arizona 85287-5920
    Phone: 602.640.9361
    Email: lhammond@omlaw.com

    Keith Swisher, 23493
    PHOENIX SCHOOL OF LAW*
    One North Central Avenue
    Suite 1400
    Phoenix, Arizona 85004
    Phone: 602.432.8464
    Email: kswisher@phoenixlaw.edu

    Karen Wilkinson, 14095
    OFFICE OF THE FEDERAL PUBLIC DEFENDER*
    850 West Adams Street
    Phoenix, Arizona 85007-2730
    Phone: 602.382.2700
    Email: Karen_Wilkinson@fd.org
    Attachments
    lhammond
    Posts:

    --
    30 Jul 2012 04:11 PM
    R-11-0033

    PETITIONER'S NOTICE OF SUPPLEMENTAL AUTHORITY

    Petitioners:
    Larry Hammond, 4049
    ARIZONA JUSTICE PROJECT
    c/o Sandra Day O’Connor College of Law
    PO Box 875920
    Tempe, Arizona 85287-5920
    Phone: 602.640.9361
    Email: lhammond@omlaw.com

    Keith Swisher, 23493
    PHOENIX SCHOOL OF LAW
    4041 North Central Avenue
    Suite 100
    Phoenix, Arizona 85012
    Phone: 602.432.8464
    Email: kswisher@phoenixlaw.edu

    Karen Wilkinson, 14095
    OFFICE OF THE FEDERAL PUBLIC DEFENDER
    850 West Adams Street
    Phoenix, Arizona 85007-2730
    Phone: 602.382.2700
    Email: Karen.Wilkinson@fd.org

    Filed July 30, 2012.

    Attachments
    JAH1970
    Posts:

    --
    25 Apr 2013 03:06 PM
    Thomas M. Fitzpatrick, Chair
    Center for Professional Responsibility Policy Implementation Committee
    tom@talmadgelg.com

    The American Bar Association Center for Professional Responsibility Policy Implementation Committee recommends that the Arizona Supreme Court amend Rule 42, ER 3.8, Rules of the Supreme Court, to identify prosecutors’ obligations when they know of new evidence establishing a reasonable likelihood that a convicted defendant did not commit the offense of which he was convicted and to address the circumstances in which a prosecutor has a disclosure obligation, a duty to investigate, and a duty to take steps to remedy the conviction of an innocent individual.

    In February 2008, the American Bar Association adopted amendments to Rule 3.8 of the Model Rules of Professional Conduct. The amendments added two provisions in order to strengthen the responsibility of prosecutors to take action when confronted with evidence of innocence. The provisions build upon the ABA’s historic commitment to developing policies and standards designed to give concrete meaning to the “duty of prosecutors to seek justice, not merely to convict” (ABA Standards Relating to the Administration of Criminal Justice, Standard 3-1.2(c)); and, in particular, to prevent and rectify the conviction of innocent defendants.

    The Committee recommends the Court adopt the amendments contained in Rule 3.8 of the ABA Model Rules of Professional Conduct. Nevertheless, the Committee believes that to the extent that any rule amendment that brings Arizona closer to the Model Rules is beneficial. The Committee advocates the desirability of having lawyer ethics case law develop uniformly throughout the country: uniform states’ rules of professional conduct have traditionally facilitated consistent and predictable interpretations and applications of fundamental lawyer ethics concepts.

    domanico
    Posts:

    --
    17 May 2013 06:31 PM
    WILLIAM G. MONTGOMERY
    MARICOPA COUNTY ATTORNEY
    (FIRM STATE BAR NO. 00032000)

    MARK C. FAULL
    CHIEF DEPUTY
    301 WEST JEFFERSON STREET, SUITE 800
    PHOENIX, ARIZONA 85003
    TELEPHONE: (602) 506-3800
    (STATE BAR NUMBER 011474)
    Domanico@mcao.maricopa.gov.

    Attachments
    Gideon
    Posts:

    --
    18 May 2013 07:03 PM
    COMMENTS OF THE NATIONAL LAWYERS GUILD-CENTRAL ARIZONA CHAPTER IN SUPPORT OF PETITION TO AMEND ER 3.8 OF THE ARIZONA RULES OF PROFESSIONAL CONDUCT


    NATIONAL LAWYERS GUILD-CENTRAL ARIZONA CHAPTER
    P.O. Box 3436
    Phoenix, AZ 85030
    CentralAZ@NLG.org

    Gail Gianasi Natale, SBA #010389
    natale@azbar.org

    Dianne Post,SBA #006141
    postdlpost@aol.com

    Kevin Heade,SBA #029909
    kevin.heade@gmail.com
    Telephone: (480)251-8534
    Attachments
    Phillisc
    Posts:

    --
    20 May 2013 10:53 AM
    Christina M. Phillis,
    Arizona Public Defender Association
    777 W. Southern Ave., Ste. 101
    Mesa, Arizona 85210
    Telephone (602) 372-2815
    Fax (602) 372-8919
    Email Juv-SE@mail.maricopa.gov
    Arizona Bar Membership No. 014871
    Attachments
    PLantka
    Posts:

    --
    20 May 2013 12:25 PM
    COMMENTS OF THE UNITED STATES ATTORNEY’S OFFICE FOR THE DISTRICT OF ARIZONA

    JOHN S. LEONARDO
    United States Attorney
    District of Arizona
    405 W. Congress Street
    Tucson, Arizona Tel: (602) 514-7500
    John.Leonardo@usdoj.gov

    JOHN R. EVANS
    Arizona Bar. No. 05797
    Assistant United States Attorney
    District of Arizona
    405 W. Congress Street
    Tucson, Arizona
    Tel: (520) 620-7514
    John.Evans2@usdoj.gov

    GARY M. RESTAINO
    Arizona Bar No. 017450
    Chief, Phoenix Criminal Division
    District of Arizona
    40 N. Central Avenue
    Suite 1200
    Phoenix, Arizona 85004
    Tel: (602) 514-7500
    Gary.Restaino@usdoj.gov
    Attachments
    REllman
    Posts:

    --
    20 May 2013 01:17 PM
    THOMAS C. HORNE
    Attorney General
    Firm State Bar No. 14000

    Robert L. Ellman
    Solicitor General
    State Bar No. 014410
    1275 W. Washington
    Phoenix, Arizona 85007
    Telephone: (602) 542-3333
    Fax: (602) 542-8608
    solicitorgeneral@azag.gov


    Attachments
    MHarrison
    Posts:

    --
    20 May 2013 01:30 PM
    Commenters:
    Mark I. Harrison, Esq.
    Terry Goddard, Esq.
    Grant Woods, Esq.
    Chief Justice Stanley G. Feldman (ret.)
    Chief Justice Charles E. "Bud" Jones (ret.)
    Hon. Robert D. Myers (ret.)
    Chief Justice Thomas A. Zlaket (ret.)

    c/o Mark I. Harrison, No. 001226
    Osborn Maledon, PA
    2929 N Central Avenue, Suite 2100
    Phoenix, AZ 85012
    Phone: 602-640-9324
    Fax: 602-640-9050
    mharrison@omlaw.com

    COMMENT OF LAWYERS IN SUPPORT OF PETITION TO AMEND ER 3.8 OF THE ARIZONA RULES OF PROFESSIONAL CONDUCT.
    Attachments
    AZStateBar
    Posts:

    --
    20 May 2013 04:29 PM
    John A. Furlong, Bar No. 018356
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 100
    Phoenix, Arizona 85016-6266
    602.252.4804
    John.Furlong@staff.azbar.org
    Attachments
    citizentaxpayer
    Posts:

    --
    20 May 2013 05:21 PM
    Mary E.Osorio
    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


    Filed electronically

    Footnotes:
    1 Change.org/free-an-innocent-woman
    2 http://blogs.phoenixnewtimes.com/"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)

    KSwisher
    Posts:

    --
    20 May 2013 06:40 PM

    Bruce A. Green
    Louis Stein Professor of Law
    Director, Louis Stein Center for Law and Ethics
    FORDHAM UNIVERSITY SCHOOL OF LAW*
    140 West 62nd Street

    New York, NY 10023

    (212) 636-6851
    bgreen@law.fordham.edu

    Ellen C. Yaroshefsky
    Clinical Professor of Law
    Director, Jacob Burns Center for Ethics in the Practice of Law
    CARDOZO SCHOOL OF LAW*

    55 Fifth Avenue
Room 1115
    New York, NY 10003
    (212) 790-0386
    yaroshef@yu.edu

    c/o Keith Swisher, 23493
    PHOENIX SCHOOL OF LAW*
    One North Central Avenue
    Phoenix, Arizona 85004
    Phone: 602.432.8464
    Email: kswisher@phoenixlaw.edu

    COMMENT OF PROFESSORS IN SUPPORT OF PETITION TO AMEND ER 3.8 OF THE ARIZONA RULES OF PROFESSIONAL CONDUCT

    Attachments
    Topic is locked
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