Arpaio Loses Appeal In Case Involving Pregnant Inmates Seeking Abortions

On January 23, 2007, the Arizona Court of Appeals ruled that inmates in the Maricopa County Jail are NOT required to obtain a court order in order to be transferred for abortion services.  The case is:  Jane Doe v. Arpaio, 1 CA-CV 05-0835.  The suit was brought by the National ACLU.  The inmate, known as Jane Doe, offered to pay jail officials for transporation and for the procedure, but had to wait seven weeks for a court order and the subsequent abortion.  Arpaio says he will appeal to the Arizona Supreme Court, stating, "We still have to bring an inmate to an abortion clinic.  It's our gas, our officers and our time.  We're not a taxi cab service."  Inmates rarely request abortion services.  Court documents showing that there have only been four or five transports in thepast 15 years.  The three-judge panel ruled that Arpaio's policy was an "exaggerated response" to safety, security, liability and resource concerns.  Inmates are routinely transferred without court orders for other reasons, including funeral services for immediate relatives. 

For a 2006 update about BLAKELY v. WASHINGTON, Click Here!

The information contained in the above link was provided for educational purposes by the law firm of Ulises A. Ferragut, Jr., and is repeated on the law firm web site at: www.ferragutlaw.com.    All questions or comments should be directed to the law firm at: 602 324-5300.  Nothing in this section should be considered or construed to be legal advice. 

Cruel and Unusual Punishment?

A sentence of 20 consecutive 10-year sentences  -- totaling 200 years in prison -- for a criminal defendant convicted of 20 separate counts of sexual exploitation of a minor does not violate the Eighth Amendment's violation against cruel and unusual punishment, according to State v. Berger, CR 05-0101-PR, 5/10/06.  Under A.R.S. 13-3552,  as well as the statutes which make the offense a dangerous crime against children, possessing one image of child pornography is a separate offense for which consecutive sentences must be imposed for each conviction, and there is no possibility of probation, early release or pardon.    In this Arizona Supreme Court ruling, the court gives weight to the fact that the legislature has a reasonable basis for believing that a particular sentence or sentencing scheme advances the goals of its criminal justice system. . ."

More on Apprendi

Unless the defendant has knowingly, voluntarily and intelligently waived the right to jury trial with respect to aggravating factors, the defendant's comment during a plea colloquy does not relieve the State of its obligation under Apprendi v. New Jersey, 530 U.S. 466 (2000), to prove to a jury any fact that increased the penalty for a crime beyond the prescribed statutory maximum beyond a reasonable doubt.  State v. Brown (McMullen), CR-05-0263-PR, 3/16/06

Timely Filing of Court Documents

See State v. Darrell Wayne Goracke (citation omitted), which stands for the proposition that a prisoner acting as his own attorney and filing a petition for review with the Arizona Supreme Ct. may meet the deadline for doing so as of the date he submits the petition to prison officials for forwarding to the court, the state Court of Appeals has ruled (emphasis added by underlining).  The rule is that a petition for review with the Supreme Ct. must be filed "within 30 days after the filing a a decision or within 15 days after the clerk has mailed notice of the determiantion of a motion for reconsideration," according to the Arizona Rules of Criminal Procedure.

Within the ruling,  the court stated that the so-called "prisoner mailbox rule" does apply.  That is, as long as a prisoner representing him/herself has delivered his document, properly addressed, to the proper prison authorities to be forwarded to the clerk (of the court in which the document is being filed), he will be deemed to have filed a timely petition.  The court stated, "[A] pro se prisoner is not in a position to make sure that his notice of appeal is timely filed.  He cannot personally file the notice with the clerk of the court nor can he directly place the notice in the hands of the Unisted States Postal Service."  This case tracks a similar ruling for appeals in the federal court, called Houston v. Lack.

In Goracke,  the court stated, "Thus, application of the prisoner mailbox rule is appropriate in this case."

Probation Issues

New Case law affecting sex offenders:  U.S. v. Antelope, 03-30334 (9th Cir. 2005)

Locate on the Internet at: http://caselaw.lp.findlaw.com/data2/circs/9th/0330334p.pdg

The case was published January 27, 2005.

The petitioner, Lawrence Antelope, in Montana, refused to incriminate himself as part of his required sex offender treatment while on probation.  He refused to fill out "sexual history" forms or to admit to any deviant sexual activity other than the crime he was convicted of unless he was granted immunity by the state for admitting to any prior criminal acts.  The state revoked his probation and he filed a law suit.  This case has major import to protect the 5th Amendment (right to refuse to incriminate oneself) and will have impact on probation departments, as well as programs at the state hospital where the length of a civil commitment for a person who has already served his criminal sentence might be based upon his "full participation" in sex offender treatment/polygraph programs.

It should be noted that this case should be read and analyzed carefully and thoroughly by a person knowledgeable in the law before any action is taken or recommended to be taken by a person under criminal justice supervision.  The facts of each case differ and may affect the applicability of case law.  See the case law below.

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Because a condition of probation must relate to the nature of the specific offence for which the defendant is being sentenced, a defendant may be ordered to pay only fees arising from the offense for which the sentence is being imposed.  See People v. Campbell 325 ILL. App. 3d569

Fifth Amendment (against self-incrimination) is violated by a probation condition requiring polygraph test IF probationer is asked about criminal activity for which he had not been convicted AND the offender could assert a Fifth Amendment privilege against compelled disclosure.  See Mangarella v. State, 17 P.3d 989 (Nev 2001).  The mere taking of a polygraph test does not violate Fifth Amendment.

Plea Bargain Issues

State v. Donald 198 Ariz. 406, 10 P. 3d 1193 (Appl.2000) A criminal defendant does not have a constitutional right to a plea agreement; however, if the prosecution engages in plea bargaining, the defendant is entitled to effective assistance of counsel therewith.

See State v. Donald also for such discussion as:  Whether to plead guilty or to insist on a trial is often the most important single decision in a criminal case.  In particualr, the decision to reject a plea agreement and to enter (or maintain) a plea of not guilty is one of vital importance. United States ex rel Caruso v. Zelinsky 689 F. 2d 435, 438 (3d Cir. 1982).

State v. Donald also contains the following, "Defense counsel must communicate to the defendant not only the terms of the plea bargain offer, but also the relative merits of the offer compared to the defendant's chances at trial."

Caruso also stands for the proposition that a defendant has the right to make a reasonably informed decision whether to accept or reject a plea offer.

American Bar Association (ABA) standards for the Criminal Justice, Prosecution and Defense Function stated, "Defense counsel should promptly communicate and explain to the accused all significant plea proposals made by the prosecutor." (Standard 4-6.2 (b).  Standared 14-3.2 (B) states, "To help the defendant in reaching a decision, defense counsel must do more than merely communicate the prosecutor's plea proposals.  Defense counsel must also, after appropriate investigation . . . advise the defendant of the alternatives available and address considerations deemed important by defense counsel or the defendant in reaching a decision."

Standard 4-5.2(a), states, "The decision to plead guilty or go to trial must be made by the defendant.  While competent advice of counsel is important, the decision about a plea offer is ultimately for the defendant and not for counsel.

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