Tuesday, August 30, 2011
The National Organization of Bar Counsel has a case of the month that is summarized by the incomparable Jim Grogan of the Illinois Administrator's office:
Case of the Month
A Murderer Loose In Apache CountyTopic:
Both the dismissal of a criminal case with prejudice and the imposition of a lawyer disciplinary sanction can result when a prosecutor violates the no-contact rule with a represented defendant.
Apache County is big. Having a total area of over 11,200 square miles, Apache is the sixth largest county in the United States. Located in Northeastern Arizona, it is the longest county in the country, 211 miles from the Utah border to just south of Alpine. Two-thirds of the population, and over one-half of the land area, is comprised of the Navajo Nation, the largest Native American tribe. According to the 2010 census, 71,518 people live in Apache County, of who almost 77% are Native American. A high percentage of its land is comprised of Indian reservations, more so than any where else in the country. More community residents speak Navajo than English. Apache County is stunningly beautiful. Notwithstanding its extraordinary scenery, however, most Apache County residents live in poverty. The county's per-capita income makes it one of the poorest places to live in the United States.
St. Johns, with a population of approximately 3,500, is the county seat. William “Stoney” McCarragher, 72, owned a ranch just outside St. Johns. He was known to carry large amounts of cash. McCarragher often employed young people to do work around his ranch. At some point, he hired a teenager named William Inmon. Inmon murdered McCarragher in 2007. The murder initially went unsolved. Two years later, a 60-year Vietnam veteran named Daniel “Hummer Dan” Achten was murdered and his body buried in a shallow grave near his home in St. Johns. Inmon had murdered him too. At some point after Achten’s killing, Inmon was travelling by car with a 16-year-old acquaintance of his named Ricky Flores. According to Inmon, the two argued about Flores’ drug use. Inmon drove Flores to a rural location outside of town where they exited the vehicle. Inmon then chased Flores down, shot him to death, and buried the body in a shallow grave.
Eventually, Inmon was implicated in all three murders. According to authorities, his overwhelming motive was that he wanted to rid society of less than desirable people, although a desire for guns and money also sparked the crimes. Inmon told police that he would have continued his vigilante killing spree had he not been caught. Inmon agreed to plead guilty to the deaths if prosecutors would not seek the death penalty. Prosecutors agreed. At all times relevant to the Inmon St. Johns murder inquiries, Michael B. Whiting was the elected Apache County Attorney and Martin E. Brannan served as his Chief Deputy.
As to each of the three murders, Inmon hinted that he had at least one accomplice. After further investigation, prosecutors alleged that Inmon had killed Flores at the suggestion of the father of Flores’ girlfriend. Both the father and Inmon’s girlfriend were charged with murder in Flores’ death. The mother of Flores’ girlfriend also faced charges. In 2009, the Apache County Sheriff’s Office arrested a 22-year-old friend of Inmon named Joseph Douglas Roberts. Roberts was charged with first degree murder, conspiracy, theft of a means of transportation, mutilating a human body, concealment of a dead body, tampering with physical evidence, and hindering prosecution. Prosecutors claimed that Roberts helped Inmon shoot and kill McCarragher and also helped Inmon dispose of Achten’s body.
Roberts hired a lawyer to defend him. At some point, the prosecutors formulated a plea offer and transmitted it to defense counsel, who was informed that the proposal would expire on the day of Roberts’ preliminary hearing. The day before the preliminary hearing, an Apache County Attorney’s Office investigator consulted with Whiting and Brannan and informed them that he was concerned that defense counsel had never communicated the plea offer to Roberts. Whiting and Brannan authorized two office investigators, Brian Hounshell and Jerry Jaramillo, to contact Roberts in jail and communicate the plea offer directly to him. When asked if defense counsel would need to be present, the prosecutors informed the investigator that defense counsel did not need to be present, so long as the investigators provided Roberts with Miranda warnings. According to a report published in the Arizona Republic, Whiting claimed that, in allowing the investigators to make the contact with Roberts, he was merely acceding to the legal conclusions reached by Brannan, who believed that contacting the defendant without notice to the defendant’s lawyer would be permissible. “If the chief deputy says it's OK, I guess it's OK,” Whiting said. “I didn't go research it.” Apparently, Brannan erroneously interpreted a then-recent United States Supreme Court decision in Montejo v. Louisiana, 556 US ___ (May 26, 2009).
The Apache County Attorney’s Office investigators met with Roberts without his counsel present, communicated the plea offer to him, and made several statements to Roberts that could be considered an attempt to pressure him into ultimately accepting the plea. Specifically, they noted that Roberts was facing the death penalty, discussed the fact that Roberts’ wife had recently lost a child through miscarriage, and noted that Roberts’ wife could be charged with felony crimes unless he agreed to waive his legal rights. Roberts said nothing incriminating during his eight-minute jailhouse conversation with the investigators.
Upon subsequently learning of the contact, Robert’s defense lawyer filed a motion to dismiss the criminal charges. Superior Court Judge Donna J. Grimsley initially removed the Apache County Attorney’s Office from the case for violating Rule 4.2, but then ultimately determined that the misconduct was of such a grave and serious nature that it had deprived Roberts of his Sixth Amendment guarantees. The court dismissed the criminal case against Roberts with prejudice and ordered him released. Judge Grimsley called the behavior of the Apache County Attorney's Office “outrageous” and “unethical” and said that the defendants’ trust in the judicial system was betrayed. Specifically, she ruled that, “The court is of the view that the flagrant and manipulative subversion of the Sixth Amendment constitutional rights in this case trumps all other considerations and that dismissal is the only remedy that will preserve the defendant's inviolable constitutional right…"
Aggravating an already bad situation, Whiting’s office issued a press release immediately after the dismissal. The release, emblazoned with a caption reading, “JUDGE ORDERS RELEASE OF MURDER DEFENDANT”, described the judge’s actions as a “murder dismissal”, and provided, in relevant part, that:
The Apache County Attorney’s Office is surprised and deeply concerned by Judge Donna Grimsley’s decision to release a defendant charged with murder back into the community. Judge Grimsley ordered Joseph Roberts released at 5:00 p.m. on January 19, 2011. Judge Grimsley’s order does not cite a case, statute or legal rule allowing her to release a person accused of murder. Grimsley’s order contains political statements, personal attacks, and quotes from the record entirely out of context…County Attorney Michael Whiting said “like the rest of the county we are shocked and left wondering why a judge would do such a thing without referencing any legal authority to do so.” Whiting stated, “Judge Grimsley’s decision to release the defendant, who was being held on first degree murder, has re-victimized the victims. Also, Whiting stated “these actions may place the citizens of Apache County and surrounding areas in danger.” Finally, County Attorney Whiting went on to say, “it is frustrating when a court cares more about a defendant’s rights than victims’ rights, this is a travesty of justice in the 1st degree.”
Formal disciplinary charges were lodged against the two prosecutors by the State Bar of Arizona. Thereafter, the Presiding Disciplinary Judge approved an agreement for Discipline by Consent and Whiting and Brannan were reprimanded. In entering into the agreement, the prosecutors conceded that they had violated Rule 4.2, but that their violation was negligent. Whiting also agreed that his issuance of the press release in response to the dismissal violated Arizona Rule 41(c) because he did not maintain the respect due courts of justice and judicial officers.
The case is In the Matter of Michael B. Whiting and Martin E. Brannan, PDJ-2011-9006 (Arizona June 30, 2011).