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38th Annual Criminal Year Seminar 2020 | April 17, 2020 | ENTIRE SEMINAR

Description
Faculty

The Arizona Prosecuting Attorneys' Advisory Council & CLE West

present

The 38th Annual Criminal Year Program 2020

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This one day seminar features presentations from all perspectives - judicial, prosecution, and defense - in addition to outstanding written materials prepared by The Honorable Crane McClennen (ret.).

Our elite faculty will be covering 50 of the most critical cases of 2019 and 2020 from the U.S. Supreme Court, Arizona Supreme Court and Arizona Court of Appeals. These cases will be analyzed for both prosecutors and defense counsel by our judges and other faculty members. And will cover criminal procedure, evidence, criminal substantive law, and constitutional issues.

This seminar provides a truly balanced presentation of the most important cases and issues of 2019 and 2020.

Areas covered will include...

Constitutional Law

Fourth Amendment:
- Fuentes, 452 P.3d 746 (Ct. App.): Does a father have a legitimate expectation of privacy in property in his son’s name; and is there a “protective sweep” exception to the warrant requirement in the absence of a contemporaneous arrest?
- Lietzau, 439 P.3d 839 (Ct. App.): When may authorities search a person on parole or probation without a warrant or reasonable suspicion?
Fifth Amendment:
- Champagne, 447 P.3d 297 (Sup. Ct.); Sallard, 451 P.3d 820 (Ct. App.): For a person in custody, when does Miranda not apply?
Sixth Amendment:
- Champagne, 447 P.3d 297 (Sup. Ct.): For a person in custody, when does the right to counsel attach?

DUI and Traffic

28–672(G); Patel, 452 P.3d 712 (Ct. App.): Is the statutory cap on restitution in this section constitutional?
28–1321(A); Diaz, 435 P.3d 457 (Sup Ct.): Must the arrestee’s agreement to take a breath test be voluntary?
28–1321(C) Implied consent: Mitchell v. Wisconsin, 139 S. Ct. 2525; Havatone, 389 P.3d 1251 (Sup. Ct.); Havatone, 443 P.3d 970, (Ct. App.): When the driver is unconscious and therefore cannot be given a breath test, when does the exigent-circumstances rule permit a blood test without a warrant?
28–1383(A)(3); Gomez, 437 P.3d 896 (Ct. App.): To be guilty of aggravated DUI with a person under 15 years of age in vehicle, must the driver know the person is under 15 years of age?
28–1594; Duffy, 453 P.3d 816 (Ct. App.): What conduct gives an officer the authority to detain a person?

Criminal Substantive Law

13–106; Reed, 456 P.3d 453 (Sup. Ct.): What happens when the defendant dies when the case is pending on appeal?
13–203(B); Fuentes, 452 P.3d 746 (Ct. App.): When does transferred intent apply?
13–407; Gentry, 449 P.3d 707 (Ct. App.): When is a defendant entitled to an instruction on use of physical force in defense of premises and use of force in crime prevention?
13–502(A); Malone, 444 P.3d 733 (Sup. Ct.): When may a defendant introduce evidence demonstrating an ingrained character trait that rendered it less likely he or she acted with reflection and deliberation?
13–804(A); Leal, 455 P.3d 327 (Ct. App.): Under what circumstances may a trial court order restitution under this section.
13–1004(A); Burch, 449 P.3d 368 (Ct. App.): When there is an accomplice, when is a defendant entitled to a facilitation instruction?
13–1801(A)(13); Dansdill, 443 P.3d 990 (Ct. App.): When the defendant takes money from a person who owes money to the defendant, when is that money considered property of another?
13–1805(A)(5); Morris, 435 P.3d 1060 (Ct. App.): At what point does shoplifting occur?
13–2321(A)(1); Hernandez, 439 P.3d 1188 (Ct. App.): What conduct constitutes participating in or assisting a criminal street gang?
13–3407(H): Angulo-Chavez, 448 P.3d 296 (Ct. App.): Is this section allowing the court to determine the value of the dangerous drugs for the purposes of increasing the mandatory minimum fine constitutional?
36–2802(D); Tagge, 442 P.3d 71 (Ct. App.): Does a “public place” include a vehicle parked in a commercial lot near a concert venue?
36–2811(B) Jones, 440 P.3d 1139 (Sup. Ct.): Does the definition of marijuana include hashish?

Criminal Procedural Law

Rule 6.1(b); Johnson, 447 P.3d 783 (Sup. Ct.); Champagne, 447 P.3d 297 (Sup. Ct.); Duffy, 453 P.3d 816 (Ct. App.): When is the trial court required to grant a defendant’s request for new counsel or accept a defendant’s waiver of the right to counsel?
Rule 13.1(e); Martin, 446 P.3d 806 (Sup. Ct.): When the jurors are instructed on a greater and a lesser charge and are unable to reach a verdict on the greater charge, and the conviction is reversed on appeal, may the defendant be retried on the greater charge?
Rule 15.2(g); Johnson, 447 P.3d 783 (Sup. Ct,): When may a trial court order a defendant to sign a release for the defendant’s records, and when may it order the defendant’s attorney to disclose all written witness statements and not just summaries?
Rule 17; Robertson, 440 P.3d 401 (Ct. App.): Does the invited-error doctrine apply to plea agreements?
Rule 17.2(b); Nunez-Diaz, 444 P.3d 250 (Sup. Ct.): What is the extent of counsel’s duty to advise the defendant of the possible consequences of mandatory deportation?
Rule 17.4(a)(2); Mendoza, 455 P.3d 705 (Ct. App.): When does the trial court’s participation in plea advisement exceed what is permissible and thereby raise a presumption of judicial vindictiveness?
Rule 19.1; Murray (Claudius), 454 P.3d 1018 (Ct. App.); Murray (Easton), 451 P.3d 803 (Ct. App.); Dansdill, 443 P.3d 990 (Ct. App.): When do the prosecutor’s arguments exceed what is permissible?
Rule 21; Hernandez, 443 P.3d 33 (Ct. App.): When does the failure of the police to collect fingerprint evidence entitle the defendant to a Willits instruction?
Rule 24.1(c)(3); Rojas, 449 P.3d 1129 (Ct. App.): What level of juror misconduct entitles a defendant to a new trial?

Evidence

Rule 104(A); Lietzau, 439 P.3d 839 (Ct. App.): To what extent may an appellate court consider hearsay in determining whether trial court abused discretion in granting defendant’s motion to suppress)?
Rule 106; Champagne, 447 P.3d 297 (Sup. Ct.): To what extent is a subsequent statement admissible?
Rule 401; Champagne, 447 P.3d 297 (Sup. Ct.): To what extent may a defendant introduce evidence of a witness’s mental illness diagnoses and drug usage?
Rule 404(b); Gentry, 449 P.3d 707 (Ct. App.): To what extent may a trial court sanitize other act evidence?
Rule 404(c); Rose, 440 P.3d 999 (Ct. App.): Does this rule allow admission of evidence of other crimes, wrongs, or acts the defendant committed as a juvenile?
Rule 501; Thompson (Vanders), 454 P.3d 1010 (Ct. App.): To what extent is the defendant entitled to discovery of the victim’s privileged mental health records?
Rule 602; Murray (Easton), 451 P.3d 803 (Ct. App.): To what extent must the witness have personal knowledge of the matter?
Rule 604; Murray (Easton), 451 P.3d 803 (Ct. App.): Does this rule require a “trained interpreter?”
Rule 701; Fuentes, 452 P.3d 746 (Ct. App.): To what extent must the witness’s testimony be based on the witness’s perception?
Rule 801(d)(2)(A); Griffith, 449 P.3d 353 (Ct. App.): When are social medial communications considered a party-opponent’s own admission?
Rule 803(5); Giannotta, ___ P.3d ___ (Ct. App. 12/26/19): When may you have multiple levels of statements?
Rule 803(6); Griffith, 449 P.3d 353 (Ct. App.): When are Facebook documents admissible?

Judge Crane McClennen, Retired Judge of the Maricopa County Superior Court

Judge Crane McClennen was born Phoenix, Arizona. He attended Arizona State University, graduating with a Bachelor degree in 1968 and a Juris Doctor cum laude in 1972, and was managing editor of the Arizona State Law Journal. He was appointed Judge of the Maricopa County Superior Court in January 1997 and retired July 2016, having served on the Criminal, Civil, Family Court, Juvenile, and Administrative Appeals and Lower Court Appeals Divisions. Prior to his appointment as judge, he worked at the Office of the Arizona Attorney General in the Criminal Appeals Section.

Crane McClennen is the author of the Arizona Courtroom Evidence Manual (1982, 1985, 1997) and Arizona Legal Forms, Criminal Procedure (1990, 2005, 2019), and has authored numerous articles in the Arizona Attorney.

In 2016, Crane McClennen received the State Bar of Arizona Michael D. Ryan award for Judicial Excellence, and in 1995, received the State Bar of Arizona award for Outstanding Member. In 1986 and 1989, he received the State Bar of Arizona award for Outstanding Contribution to Continuing Legal Education, and in 1991, received the State Bar of Arizona award as Outstanding Public Lawyer. He is a Founding Fellow of the Arizona Bar Foundation.

Dave Cole, Retired Judge of the Maricopa County Superior Court; of Counsel, Poli, Moon, and Zane, PLLC, Arizona Attorney General's Office

Dave Cole, who currently serves in an "of counsel" capacity at the law firm of Poli, Moon, and Zane, was admitted to the State Bar of Arizona in 1976. He has served in a number of capacities and places, including the Pima and Maricopa County Attorney's Offices, the Office of the Attorney General (first as an AAG and later as Solicitor General), and as Clerk of the Court for the Arizona Supreme Court. He served on the Maricopa County Superior Court bench from 1989 to 2007, where he spent the majority of his time in the Criminal and Special Assignment Departments. In the 1980's, he taught Evidence, Criminal Procedure, and Trial Advocacy) at the Pepperdine University School of Law. He taught ten different courses at the Phoenix School of Law and has served as an adjunct professor at ASU's Sandra Day O'Connor College of Law. He has served on a number of commissions and committees, including then-Attorney General Napolitano's Capital Case Commission and as co-chair of the Arizona Supreme Court's Victims' Rights Implementation Committee. He is a former member of the Arizona Criminal Justice Commission and served as a member of the Arizona Supreme Court's Commission on the Rules of Evidence from 2010-2018. Dave has four adult children and three beautiful granddaughters.

Gary Shupe, Assistant Phoenix City Prosecutor, Phoenix City Prosecutors' Office

Linley Wilson, Unit Chief Counsel, Arizona Attorney General's Office

Linley graduated summa cum laude from Arizona State University with Bachelor of Arts degrees in Political Science and Italian. She obtained her J.D. with pro bono distinction from the Sandra Day O’Connor College of Law in 2008, where she served on the Arizona State Law Journal as an articles editor and staff writer. Linley completed a judicial clerkship at the Arizona Court of Appeals for the Honorable Jon W. Thompson from 2010 to 2011. From 2011 to 2015, Linley was an Assistant Attorney General in the Criminal Appeals Section (“CAS”) of the Attorney General’s Office, and then mentored and supervised other AAGs in CAS as Unit Chief Counsel from 2015 to 2019. The work of attorneys in CAS primarily consists of representing the State of Arizona in felony criminal cases in state appellate proceedings and representing the Director of the Arizona Department of Corrections in habeas corpus proceedings in federal courts. In 2016, Linley received a Leadership in Action award for the Solicitor General’s Office for serving as Acting Section Chief of CAS for about four months.

In 2019, Linley joined the Appeals and Constitutional Litigation Division of the Office, where she currently serves as a Deputy Solicitor General and the Government Accountability Unit (“GAU”) Chief Counsel. GAU’s responsibilities include civil enforcement of state law relating to public bodies, public monies, and state election law. GAU investigates and litigates: 1) violations of state law by counties, cities, and towns under A.R.S. § 41-194.01; 2) illegal payments of public monies; 3) open-meeting law violations; 4) violations of school procurement regulations and laws; 5) civil enforcement of election laws, including failure-to-file referrals for candidates and lobbyists; 6) quo warranto actions; and 7) other actions for declaratory and injunctive relief. Linley also personally handles investigations and litigation on these topics that involve significant constitutional, statutory, and/or rule interpretation, or institutional issues, advises the executive office on various issues in criminal and civil cases, drafts and reviews Attorney General opinions, and writes amicus briefs on behalf of the Attorney General’s Office for cases pending in state and federal courts.

Linley is a frequent CLE presenter for the Arizona Prosecuting Attorneys’ Advisory Council. In 2019, Governor Douglas A. Ducey appointed Linley to the Arizona Commission on Appellate Court Appointments, which is responsible for vetting, interviewing, and nominating candidates to the Governor for judicial vacancies on the state’s appellate courts.

Robert McWhirter, Attorney at Law, Law Offices of Robert J. McWhirter

Robert J. McWhirter is a national and international expert on trial advocacy with the skills and experience to help you. Not only is Mr. McWhirter a Certified Specialist in Criminal Law with the State Bar of Arizona, he is first chair qualified to defend capital cases by the Arizona Supreme Court. He’s a former Federal public defender and Maricopa County public defender, instructor and speaker at seminars for other lawyers and judges, and a published author on legal issues.

Abigail Jensen, Pima County Public Defender, Pima County Public Defender's Office

Abigail Jensen has been an attorney for more than 35 years (University of California, Berkeley, School of Law, 1982; Stanford University, Economics, 1975). She first practiced in a medium-size firm in Seattle doing general corporate, venture capital, and intellectual property work, before coming to Arizona. Since 1997, her practice has focused on indigent criminal appeals and post-conviction relief (PCR) proceedings in Arizona state courts, first as a contract attorney for Yavapai County, and, since 2012, with the Pima County Public Defender’s Office.

Honorable David Cutchen, Judge of the Gilbert Municipal Court, Gilbert Municipal Court

I graduated from ASU for both undergraduate and law degrees.

- worked as an associate in a local firm here in the valley practicing criminal defense. Our practice was primarily in the Phoenix Metro area but as an associate I made court appearances all over the state.

- I then operated my own law firm before taking a job on the bench. I continued to handle predominantly criminal defense matters.

- started with the Gilbert Municipal Court in May 2007. Next month will be 13 years that I have been a Judicial Officer. I took over duties as the Presiding Judge in June 2019.

- I live in the east valley with my wife and 5 children.

- this is my second year presenting as faculty with Gary Shupe

-I enjoy camping, golfing, playing softball, attending sporting events and riding motorcycles. I’ve especially enjoyed coaching my children’s sports teams over the years.

The Honorable Amanda Parker, Assistant US Attorney, Judge at the Maricopa County Superior Court

Amanda Moncayo Parker is a judge on the Maricopa County Superior Court. She was appointed by Governor Douglas Ducey in 2022 and is presently assigned to the Juvenile Division, where she manages the cross-over youth calendar. Prior to becoming a judge, Amanda Parker was the Bureau Chief of Appeals at the Maricopa County Attorney’s Office. She also clerked at the United States District Court for the District of Arizona. Judge Parker obtained her undergraduate degree from Grand Canyon University and her law degree from the George Washington University Law School.