Judge Gary Donahoe
Maricopa County Judge Gary Donahoe looked out on a courtroom divided cleanly in half on Tuesday, all the way back through the gallery. On one side was a packed batch of local defense attorneys. On the other, a battery of sheriff’s deputies, each donning a brown uniform and badge.
Donahoe scanned the courtroom and shrugged. “There is a line here that I have to balance,” he said. Then he asked the two sides what he should do.
Donahoe has been overseeing a rather bizarre case in recent weeks surrounding what a sheriff’s employee did to a defense attorney on Oct. 19 in full view of courtroom security cameras.
The employee, detention officer Adam Stoddard, was caught on tape sneaking behind the back of defense attorney Joanne Cuccia and taking a document from her files while she was speaking in court that day.
Stoddard has since said “keywords” in those files had caught his eye, and he believed the document might reveal that Cuccia’s client, an alleged member of the Mexican Mafia, was directing a crime to take place.
Stoddard soon figured out, however, that the document said nothing of the sort. Still, it was too late.
Stoddard’s actions that day soon set off an uproar that has ricocheted across the nation in legal circles about the sanctity of the attorney-client privilege.
Many attorneys who watched the video of Stoddard taking the file say it doesn’t matter what he saw; the law prohibits him from reading any private communication between an attorney and her client.
That’s precisely the issue that Judge Donahoe has been exploring during the series of hearings in recent weeks. Did the officer really think a crime was taking place, and if so, did he even have a right to secret away the document while no one was looking?
Final testimony wrapped up Tuesday with Cuccia saying she was concerned about her reputation. An attorney for 10 years with a spotless record with the bar, Cuccia said she felt like she was being accused of a crime herself. “I’ve never been accused of wrongdoing before,” she said.
Craig Mehrens, a high-profile Phoenix lawyer who is representing Cuccia in the matter, asked her: “Other than your reputation, what else do you have as a lawyer?”
“Nothing,” she said.
After hours of testimony during the hearings, Donahoe turned to the packed courtroom and said he hadn’t yet figured out what to do with the case. He admitted he was in a tight spot.
One of the highest-ranking judges in Maricopa County, Donahoe oversees the criminal courts. He told the attorneys Tuesday he must to keep in mind that the sheriff’s deputies – whose practices were under scrutiny in the hearing – are assigned at the courthouse to protect the public, the attorneys and judges, too.
“I don’t want to unnecessarily hinder or prevent deputies from carrying out security in the courtroom,” Donahoe said.
But Mehrens argued the judge has a greater duty to protect the attorney-client privilege, a sacred right in the legal world.
“I would argue that’s exactly your job,” Mehrens said.
Any attack on that is harmful to the entire legal system, he said. He asked Donahoe to hold not only Stoddard, but also the entire Maricopa County Sheriff’s Office, in contempt and to fine the people involved personally.
Later, Donahoe said he did not have the authority to hold Stoddard in “direct criminal contempt” because the offense had not taken place in front of him or even in his courtroom.
If anything, Donahoe said, he could decide to hold the detention officer in “indirect civil contempt,” which carries much less weight. Even then, Stoddard has already given the documents in question back to the defense attorney, so Donahoe said he was unsure what order the contempt citation could carry.
“Well, you ought to do something,” Mehrens said. “If you do nothing, I think you’re saying to all of us they can do it, they can get away with it and there’s nothing we can do about it.”
The attorney for the sheriff’s office, deputy county attorney Tom Liddy, said the detention officer could have handled the situation better or differently. However, he argued that Stoddard was still within his rights to seize the document because he thought a crime was taking place.
“It is not the position of the sheriff that that was the right thing to do,” Liddy told the judge. “It’s the position of the sheriff that he had a good-faith basis to do so.”
Liddy noted again that Cuccia’s client, Antonio Lozano, was a documented member of the Mexican Mafia. The gang has been known to corrupt defense attorneys and pass notes to other gang members through their lawyers, he said.
Stoddard told the court previously that he was on high alert for all of these things when he happened to see a piece of paper sticking out from Cuccia’s file. Stoddard testified last week he saw the words “going to” “steal” and “money” grouped in the same sentence.
“When he saw those four words, that raised red flags,” Liddy said.
But Mehrens responded by telling the judge that all the talk about the Mexican Mafia and what other attorneys have done in the past is a distraction from the case at hand. No one has suspected Cuccia of being corrupted, and in fact, the document that was taken never revealed a crime had taken place.
“It was not a good faith belief,” Mehrens said. “It is a belief by him and by the people he works for that they can do anything they want and get away with it.”
Maria Schaffer, the new attorney for Lozano, was also in court, but she made no argument about what should happen to the detention officer.
Instead, Schaffer told the judge she planned to file a motion asking for Lozano’s assault charge, which he was being sentenced for on the day in question, to be dismissed. She also said she would be asking for all of his future proceedings to be moved to another jurisdiction because this case has received too much publicity in Maricopa County.
Donahoe said he would take everything under consideration but made no ruling.
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