Information for Clients of the Pima County Public Defender
The Client's Responsibility
be rightful, it must be reasonable; that the minority posess their equal rights, which equal law must protect, and to violate would be oppression. ~
-- Thomas Jefferson
This is the most important information that you will need to successfully manage your case:
1) KEEP IN CONTACT WITH YOUR ATTORNEY AT ALL TIMES. Our office is open Monday through Friday from 8:00 a.m. to 5:00 p.m., except on holidays; our phone number is 243-6800. Our clients can leave messages in the evenings and on weekends.
If a client’s attorney is unavailable, the attorney’s secretary may be able to give the client the information he or she needs. The client should always ask the secretary if the lawyer is not in.
If a client is at the Pima County jail, he or she may call our offices using the direct line at the jail. Most attorneys are in court from 8:30 to 10:00 a.m., and many go to the jail in the afternoon. Clients released from the jail should contact their lawyer soon as possible. If a lawyer calls a client, the client should make sure to return the call. All appointments made with the lawyer should be kept, and the client should be prepared and on time.
2) BE INVOLVED IN THE CASE . Clients can do a lot to help their lawyer prepare their defense. If a lawyer sends a client documents (such as police reports or a grand jury transcript), the client should review them closely, and make notes of any questions to ask, or comments to make to the lawyer.
All documents received from the lawyer should be marked “ATTORNEY/CLIENT WORK PRODUCT – PRIVILEGED” The client should not show these documents to anyone else, particularly at the Pima County jail. Jailhouse “snitches” are common; they may use these documents to learn about a person’s case, and then make up lies about the person’s “confession.”
A client can also help a lawyer to locate witnesses that could be helpful to his or her case. Our office has professional investigators who will actually locate and contact the necessary witnesses. These investigators should always be cooperated with fully.
3) DO NOT MAKE YOUR SITUATION WORSE. A client should not talk to anyone–-including friends or relatives—about the facts of the case. Persons that a client talks to could later become witnesses against the person, EVEN IF THEY DO NOT WANT TO. Statements made to those persons can then be used AGAINST the client who made them.
OUR CLIENTS MUST AVOID GETTING ARRESTED FOR A NEW CRIME. In particular, our clients should be careful about the people they choose to associate with because “hanging out” with the wrong people can still result in the client getting into trouble.
OUR CLIENTS SHOULD NOT DRINK OR USE DRUGS. If a client has a problem with drugs or alcohol, he or she should tell his lawyer and ask for help. A client’s lawyer can refer him of her to treatment facilities in the community, and a person who admits they have a problem and then takes steps to correct it is looked upon favorably by the Court.
CLIENTS MUST OBEY ALL PRETRIAL RELEASE CONDITIONS. A person involved with Pretrial Services must not leave the State without permission, and should contact Pretrial Services on a regular basis.
A CLIENT MUST NEVER CONTACT THE VICTIM IN THE CASE OR GO BACK TO THE “SCENE OF THE CRIME” UNLESS THEY HAVE PERMISSION FROM THEIR LAWYER AND THE COURT!
4) MAKE A GOOD IMPRESSION. Persons involved with the criminal justice system will be meeting with or seeing a variety of government officials while their cases are in the system: Pretrial Services, prosecutors, judges, probation officers, and others. Always dress in neat and clean clothes: no jeans, T-shirts, shorts, tank tops or other casual attire.
Our clients should always be respectful. When they are in front of a judge they should always say “Your Honor,” or “Sir,” or “Ma’am.” They must never lie. They should not slouch, wear hats, or chew gum in court. Body jewelry should be kept to a minimum.
If a client has a drinking or a drug problem, the Court may require, or the lawyer might ask the client to attend a counseling program. THE CLIENT SHOULD ALWAYS DO IT! If a client takes steps to improve his life, this can be persuasive evidence to a judge or probation officer.
5) THE CLIENT SHOULD BE A PARTNER TO HIS LAWYER AND HELP MAKE DECISIONS.
The clients always get to decide:
- Whether to go to trial or take a plea agreement
- Whether or not to testify
The lawyer is responsible for making strategic decisions:
- What motions to file
- Whether to object to a question in court
- What witnesses to call, and so on . . .
The lawyer will always want to hear a client’s suggestions, and will always offer an opinion about the options a client has. The sentencing laws in Pima County are not favorable to persons accused of crimes, and those charged often face difficult decisions. This can be very stressful. The lawyer’s job is to take some of the pressure of decision-making off the shoulders of the client, but the client still needs to be involved.
6) THE CLIENT SHOULD NOT TALK TO ANYONE ABOUT THE CASE OTHER THAN HIS OR HER LAWYER, AND THE LAWYER’S PARALEGAL, SECRETARY, OR INVESTIGATOR.
A client should avoid even talking to family or friends about the “crime” because if he or she does, it could make it possible for the State to use those persons as witnesses against the client.
Felony or Misdemeanor?
When the police file a complaint against an individual, the crime charged will be either a “misdemeanor” or a “felony.” A felony is more serious than a misdemeanor, and is potentially punishable by a sentence in the state prison system (and a fine of up to $150,000 plus surcharges).
By contrast, misdemeanors are punishable by no more than six months in the Pima County jail (and a fine of up to $2,500 plus surcharges). Within a few days after the charges are filed, the police meet with the prosecutor (a lawyer for the State of Arizona), who decides whether formal felony charges will be filed.
General Court Procedures from Arrest through Trial and Appeal
When a person is arrested, he or she must have an “initial appearance” before a magistrate (a judge) within 24 hours. For most people, the initial appearance happens at “Video Court” at the jail.
At the initial appearance, individuals are informed of the charges against them and advised of their right to a lawyer (a Public Defender), who is assigned by the Court. The assigned lawyer will try to visit a person being held at the jail as soon as he or she receives notice of being appointed to the case.
Sometimes, a person in jail will be visited by a paralegal or an investigator from the office. It is important that they cooperate with the investigator or paralegal because they give the attorney a head start on the case.
Pretrial Release from Jail
At the initial appearance in Pima County Justice Court, the Justice of the Peace sets the amount of a person’s bail or the conditions of their release. If a person is being held on bail or bond, the Public Defender may be able to file a motion (ask the Court) to reduce bail.
These are the factors that a judge will consider in making a decision:
1. The seriousness of the offense.
2. The past criminal record of the person accused.
3. Whether or not the person accused is employed.
4. How long the person has lived in Tucson and whether the person has any ties to the community (such as a home, a family, children they take care of, a job, or something else that would tend to keep them in Tucson).
5. The opposition from the County Attorney’s office (the prosecutor) or the alleged “victim(s)” (if any).
However, because of the “Victim’s Bill of Rights,” a person accused of a crime must normally wait five days before a “hearing” is set on the motion (a time scheduled for a judge to hear the request for reduced bail). The five days is allowed to give the “victim” a chance to appear before the judge.
Sometimes Pretrial Services, which is a part of the court system, will help to get a quick hearing before the preliminary hearing (see below), but more often, any bond reduction motion will not be heard until after a person’s arraignment (see below). If Pretrial Services gets involved, they will call a person’s references (people who can say good things about the person in jail) and check them out.
A person in jail can help his lawyer by providing the names and phone numbers of people who can vouch for him, who will give him a place to stay, who will agree to be a “third party custodian” (basically, to make sure that he will make it to all of his court appearances), to help get him a job, or, if applicable, to help him get into a drug or alcohol rehabilitation program (re-hab). The person’s lawyer will talk to the prosecutor first to see if they will agree; if not, a motion can be filed.
A bail bondsman can quickly get someone out of jail, but the person will usually have to pay 10% of the amount of the bond (which is not returned), and give a security or collateral for the entire amount of the bond.
Instead of using a bonding company, real property (a house or land) can be posted with the Court if the “equity” (net value) of the property is more than the amount of the bond. The Public Defender may be able to help a person prepare the bond papers if real property is used to post the person’s bond.
Preliminary Hearing or Grand Jury?
At the initial appearance, the magistrate sets a date for a “preliminary hearing” and decides the conditions of release for the person accused of the crime. If the person is released from custody at the initial appearance, the preliminary hearing will be set within 20 days; if the person is held on a bond, the preliminary hearing will be scheduled within 10 days.
In most cases the preliminary hearing will not take place. The law states that before any felony case may be transferred to Superior Court and a trial date set, there must be a finding of “probable cause.” This simply means that the State of Arizona, which prosecutes crimes through the Pima County Attorney’s Office, must present some evidence that a crime was committed and that the person accused committed it. The term “some evidence” does not mean a trial.
There are two ways for the prosecutor to establish probable cause and move the case to Superior Court:
- By a preliminary hearing, or
- An “indictment” by a grand jury
The prosecutor alone gets to decide which he or she wants to do. It must be one or the other, but not both. The preliminary hearing, which is already scheduled by this time, would take place in Justice Court (the pink building with the round blue/green dome on top) at 115 N. Church Avenue (SW corner of Church Ave. and Alameda St.)
The person accused of the crime would attend this hearing with his or her lawyer (a Public Defender), and the person’s lawyer would be able to cross-examine (ask questions of) the State’s witnesses. A judge would then make the final decision about whether or not there is probable cause to prosecute the person on the crime(s) charged.
In Pima County, however, the prosecutor usually takes criminal cases to the “Grand Jury,” which is a “secret” proceeding (meeting) that is only attended by the prosecutor, his or her witnesses, 9 to 16 “grand jurors,” (a regular jury of average citizens), and a court reporter. There is no judge present at this meeting, and the person accused of the crime, and his lawyer, are not allowed to attend.
The grand jury usually meets before the date set for the preliminary hearing, which is why preliminary hearings do not generally occur in Pima County. Once the grand jury meets on a case and returns an indictment, there will be no preliminary hearing.
If the person accused of the crime is still in jail, the Sheriff’s Office will deliver the indictment to the person sometime before his or her next court hearing, which is the “arraignment.” If the person is not in jail, he or she will receive notice, by certified mail, of the indictment and a summons (an order) to go back to court.
IT IS EXTREMELY IMPORTANT FOR INDIVIDUALS TO CHECK THEIR MAILBOXES FOR NOTICES FROM THE COURT, THE SHERRIFF’S OFFICE, AND THE PUBLIC DEFENDER’S OFFICE. INDIVIDUALS MUST MAKE SURE TO NOTIFY THEIR LAWYERS IF THEIR ADDRESS OR PHONE NUMBER CHANGES.
The next court appearance is called an “arraignment.” It must be set within 10 days after an indictment is issued.
OUR CLIENTS MUST CALL OUR OFFICE ON THE DAY BEFORE THE PRELIMINARY HEARING DATE BETWEEN 4:00 AND 5:00 P.M. TO SEE WHETHER THEY HAVE BEEN INDICTED BY THE GRAND JURY, OR WHETHER THE PRELIMINARY HEARING WILL TAKE PLACE AT THE SCHEDULED TIME. A RECEPTIONIST WILL BE ABLE TO ANSWER THIS QUESTION. OUR PHONE NUMBER IS 740-5300.
The “arraignment” also takes place at Justice Court ( 115 N. Church Ave.) in Courtroom G on the second floor. The person accused of the crime MUST be there. If the person is still in jail, the arraignment will take place in video court.
Persons not in jail MUST show up in person and be ON TIME. Failure to do so could result in a warrant being issued for the person’s arrest. Arraignments start promptly at 1:00 p.m. A lawyer from the Pima County Public Defender’s Office will be there to represent persons assigned to our office.
Individuals being arraigned are given a copy of their indictment and plead “not guilty” to the charges. Individuals plead not guilty at this hearing because they have a constitutional right to a presumption of innocence (they are not guilty until proven guilty in a court of law), and it is the State’s responsibility to prove them guilty “beyond a reasonable doubt.”
At the arraignment individuals learn which judge their case is assigned to, and the date of their next court appearance: the “Case Management Conference.” Once a person’s case is called, the arraignment takes only about 30 seconds, and the person will usually be able leave after it is over.
However, there are usually 20 to 30 other cases scheduled at the same time, so a person may be in court for up to an hour, and sometimes longer. The Case Management Conference takes place about a month after the arraignment.
After Arraignment and Before the Case Management Conference
The Public Defender’s Office receives the police reports and witness statements (called “disclosure”) from the prosecutor’s office, and makes copies available to the clients (persons accused of crimes) that we are assigned to represent.
The Public Defender’s Office receives a copy of the “grand jury transcript” from the prosecutor’s office, which tells us what happened in the grand jury proceedings (when the person was indicted), and makes copies available to the client.
The person accused of the crime and his or her assigned lawyer meet to discuss the case. The Law Offices of the Pima County Public Defender are located at 33 N. Stone Ave., 21st Floor, in the Bank of America Building (on Stone Ave. between Congress and Pennington Streets, and across the street from the Legal Services Building).
IN ORDER FOR US TO PROVIDE THE BEST LEGAL REPRESENTATION TO OUR CLIENTS, IT IS VERY IMPORTANT THAT THEY BE RESPONSIBLE ABOUT KEEPING THEIR APPOINTMENTS. PLEASE BE ON TIME FOR ALL SCHEDULED APPOINTMENTS AND COURT APPEARANCES, OR CONTACT US BEFOREHAND IF YOU WILL BE LATE OR CANNOT MAKE IT.
Sometimes a Public Defender will need to conduct an investigation to research a client’s case. It is very important that our clients cooperate fully with our investigators. They gather information to help make our clients’ cases stronger. The client’s lawyer will need to locate and interview any witnesses that may help the client. A client can help his lawyer by letting him know who these witnesses are and how they can be contacted. This type of investigation helps the lawyer evaluate the client’s case so that he can take legal steps to help the client and explain the client’s options.
Persons who are not in jail MUST continue to obey the conditions of their release. This means committing no crimes, not leaving the State without permission, keeping in contact with Pretrial Services if required to do so, and staying away from the “victim” (if any) and their address.
The Public Defender will talk to the prosecutor about the case. This may result in a “plea offer,” where the prosecutor “offers” the person accused of the crime a chance to “plead” (admit guilt) to a particular charge (usually less serious than the one originally charged).
About 85% of all felony cases result in a “plea agreement,” or a “plea of guilty” (to reduced charges), which is a written contract signed by the person pleading guilty, his or her lawyer, and the prosecutor.
Case Management Conference
All persons accused of crimes in this country have a right to a speedy trial. Persons in custody have the right to have a trial start within 150 days of their arraignment.
Persons not in custody have the right to have a trial start within 180 days of their arraignment. Often, it is in a person’s best interest to delay the start of trial (for strategic reasons).
At the Case Management Conference, about 30 days after the arraignment, an individual will see the judge who will decide his or her case. It is important for persons appearing before a judge to dress appropriately (NO JEANS, SHORTS, OR T-SHIRTS) and be courteous (show proper respect) to the judge.
The purpose of the Case Management Conference is for the parties (people involved in the case: the accused, “victims”, and attorneys) to tell the judge whether the case will likely result in a plea agreement or a trial. If, by then, the person charged with the crime agrees to a plea agreement (see below), then the next court date may be changed to a “change of plea hearing” on another date.
If the person agrees to plead guilty (usually to reduced charges), the judge will schedule the “sentencing” to about 30 to 45 days later (and there will be no trial). If the parties cannot agree to anything, the judge will pick a date for a Pretrial Conference, which will occur about a month after the Case Management Conference.
About 85 to 90% of all criminal cases in Pima County never go to trial. A few are dismissed, and some may go to the County Attorney’s Diversion Program. Diversion is a limited program that is only available to people who have no prior convictions and who are not charged with violent offenses, sex offenses, or certain other crimes.
Most cases are resolved by “plea agreements,” where a person charged with a crime pleads guilty to certain crimes or offenses that are usually less serious than the ones they were originally charged with.
Quite often, in exchange for pleading guilty to a particular charge, the County Attorney will agree to drop more serious charges, or not allege priors (use prior felony convictions against the person in the current case to get a harsher sentence).
A plea agreement, for example, could result in a person not having to face mandatory prison time in certain cases. A prosecutor will rarely recommend or guarantee probation, although, in a fair number of cases, they will agree to make probation available or possible.
If there is a possible plea agreement, the County Attorney will prepare a written plea agreement and the Public Defender will explain it to the client (person charged with the crime). The client should ask questions about anything for which he or she wants more information.
If the client decides to accept the plea offer, his lawyer will schedule a “change of plea hearing.” At this hearing, the judge will ask the client a series of questions about the plea agreement to make sure that the client is “knowingly” (with complete understanding) and “voluntarily” (not being pressured) entering into the agreement, and understands that by pleading guilty, he or she is giving up the right to have a trial.
For example, the judge will ask about the “factual basis” for the plea. The client will then tell the judge what happened so the judge can decide whether what was done is in fact a crime. The judge will also ask the client whether he or she has taken any alcohol or drugs in the past 24 hours.
Obviously, individuals appearing at this type of hearing (or any other court hearing) should not take any drugs or alcohol before the hearing. This is necessary to ensure that the person charged with the crime is thinking clearly when appearing in court, and when making important decisions related to the charges. The judge will ask several other questions which the lawyer and the client will discuss in a meeting before the hearing.
The lawyers from the Public Defender’s Office can make no promises or guarantees to their clients about their potential sentences or anything else. This is because each case is decided on individually by the judge, based on the facts of the case, and the background of the person accused.
It is very important that each client fully understands his or her written plea agreement. The client should treat it like any other contract. If the client has ANY questions whatsoever, he or she MUST ask the lawyer to get answers.
The judge has the discretion (is allowed to decide) not to accept a plea agreement if he or she believes that the plea agreement is too lenient (not harsh enough) or is otherwise inappropriate. This does not happen very often. A person who pleads guilty should assume that he or she cannot later change his or her mind and withdraw or take back the plea unless the judge allows it.
If the County Attorney offers a plea agreement that is acceptable to the client and a change of plea hearing can be scheduled before the Case Management Conference, then the client does not have to wait until the Case Management Conference to have the change of plea hearing.
Instead, a change of plea hearing can be scheduled for almost any afternoon at 3:00 p.m. before a Commissioner in the Pima County Superior Court. The Commissioner will conduct the change of plea hearing in exactly the same way that a change of plea hearing would be held before a regular Superior Court Judge.
The Commissioner will ask the person charged with the crime questions to make sure he or she is knowingly and voluntarily entering into the plea agreement, understands the rights that are given up by pleading guilty, and that there is a factual basis for the plea.
Having the change of plea hearing in front of the Commissioner before the Case Management Conferences has two advantages. First, it leads to a quicker resolution (ending) of the case.
Second, in most situations, if a person enters into a plea agreement before a Commissioner prior to the Case Management Conference, the client will be able to choose which judge will do the sentencing in his or her case. Sentencing generally takes place 30 days after the change of plea hearing.
If a case cannot be resolved by a plea agreement at the time of the Case Management Conference, then the judge will probably schedule the case for a Pretrial Conference approximately 30 days after the Case Management Conference.
The judge may require that a Pretrial Statement be filed with the Court several days before the Pretrial Conference. The Pretrial Statement is a form prepared by the lawyers. It advises the judge of what issues are disputed in the case, what witnesses may be called, what legal motions may be filed, and whether either side has any objections to the disclosure that has been submitted as of the time of the Pretrial Statement.
It is anticipated that if a witness is not named on the Pretrial Statement, that witness may not be called as a witness at the time of trial. Therefore, it is extremely important for our clients to talk to their lawyers in detail about their case BEFORE the time that the Pretrial Statement is filed.
If a client does not talk to his or her lawyer before the Pretrial Statement must be filed, or has not told his or her lawyer about all possible witnesses in the case by this time, it is possible that those witnesses will not be allowed to testify at the time of the trial.
At the Pretrial Conference, the judge will review the Pretrial Statement to see if there are any issues that can be resolved, such as the failure to provide witness statements, or other disclosure (information about the case); and the judge will schedule a trial date.
Persons charged with crimes should plan on coming to the Pretrial Conference so that they can be specifically advised of when their trial will take place. The judge will also advise the person at that time that if he or she fails to appear at the trial, it can take place in their absence and warrant will be issued for their arrest.
If a person’s case goes to trial, (and this decision is that person’s to make) the person and the attorney will spend a lot of time together as the trial date gets closer. Preparation is very important, so full cooperation between the two is vital to the success of the defense. Even the simplest case may take 2 or 3 days to prepare.
After the entire case is presented, a jury will find the accused either “not guilty” (the person is free to go and the case is over) or “guilty.” All the jurors must agree “unanimously” (together as one) that the person is either not guilty, or guilty. All persons are presumed to be innocent until the prosecutor convinces each member of the jury “beyond a reasonable doubt” that they are guilty.
A person accused in a criminal trial does not have to “testify” (talk about the case) in court, but he or she may, and the lawyer can certainly call witnesses for the accused. Sometimes, the jury cannot decide unanimously, and the judge declares a mistrial. If that happens, the case can be re-tried in front of a different jury. If the person is found guilty, he or she will be sentenced by the judge about 30 days later.
When a person enters a plea agreement, or is found guilty by a jury, the judge then “sentences” (gives a punishment to) that person. Just before sentencing, the judge receives a special report from the Adult Probation Department, called a “Pre-sentence Report.” When a person pleads guilty, or is found guilty by a jury, he or she then meets with a Probation Officer who will ask them to provide some background information about themselves – some in writing and some orally.
The person will give a detailed history of their social and medical background, as well as their version of what happened. The probation officer can be a valuable ally; it is important that our clients try to make a good impression on their probation officer by demonstrating that they are honest and sorry for what they did.
Lawyers from the Public Defender’s office work closely with their clients to make sure that they do not make harmful statements to the probation officer. Clients should also get letters of support from family members, friends, a church pastor, program supervisors, or employers. The judge will read these and take them into consideration when deciding on a sentence. Our lawyers work with our clients on how to get these letters.
Sentencing laws in Arizona are very tough. Our lawyers explain them to our clients individually and in person. Sometimes, it is a major victory to have the possibility of Probation. If the judge gives a person probation, he or she will not go to prison (unless they violate the terms of probation, or commit another crime while on probation).
Instead, the person may be required to do a number of things, such as paying a monthly fee (separate from any “restitution” (payment) made to victims and fines), community service, counseling programs, drug testing, and so on. People who get probation may also have to serve some County jail time (up to one year). There are different levels of probation, depending upon how much supervision the judge thinks a person needs.
Appeals and Post-Conviction Petitions
After a sentencing, a convicted individual who is not happy with what happened may be able to file a written appeal or petition for post-conviction relief. If a person has a trial, is convicted, and then sentenced, they can file an “appeal.” A “Notice of Appeal” must be filed within 20 days from the sentencing date. If a person pleads guilty and is sentenced, he or she cannot file a direct appeal to the Court of Appeals. Instead, they may only file a “Rule 32 Petition for Post-Conviction Relief” (within 90 days). On a Rule 32 Petition, the same judge who sentenced them will listen to the persons arguments and make a decision. If the person loses, then they may ask the Court of Appeals to look at their case, but the Court of Appeals is not required to do so. However, our clients should be aware that it is very difficult to win appeals or Rule 32 Petitions, especially after entering a plea of guilty.