[T]his case is not about disobeying a court order. It is about protecting a defense attorney from misbehavior and harassment by another officer of the court. It is about protecting the sanctity of the attorney-client privilege. It is about enforcing the boundaries of the 4th Amendment. This Court is of the opinion that DO Stoddard’s conduct in removing the document from counsel’s file and copying the document was misbehavior that impacted the court’s duty to protect attorneys from unreasonable conduct and thereby lessened the dignity and authority of the court. For proof of that point, one need look no further than the media reports about this event; those reports have cast everyone involved in a negative light. The seizure violated the 4thAmendment to the Constitution of the United States.
The punishment? An apology, acceptably sincere to defense counsel (“a pretty shifty move,” writes Scott, “on the judge’s part”), before December 1, or an indefinite jail sentence.
Then, as Jeff Gamso relates, Sheriff Joe Arpaio, Deputy Stoddard’s boss, said that the order would be defied:
My officer was doing his job and I will not stand by and allow him to be thrown to the wolves by the courts because they feel pressure from the media on this situation .… I decide who holds press conferences and when they are held regarding this Sheriff’s Office.
Jeff is left wondering how this will all shake out:
Will Detention Officer Stoddard apologize? Will Sheriff Arpaio let him? Will the judge actually lock anyone up? Who will it be? And what will Cuccia do?
I’m interested in that too; this might be a good time for a refresher in the different types of contempt, for Judge Donahoe, for Stoddard’s lawyers, and for my fellow blawgers. Here’s The Arizona Supreme Court in Ong Hing v. Thurston:
Contempt has been broken down into four classifications: criminal contempt is the commission of a disrespectful act directed at the court itself which obstructs justice, Van Dyke v. Superior Court, 24 Ariz. 508, 211 P. 576; civil contempt is the disobeyance of a court order directing an act for the benefit or advantage of the opposing party to the litigation, Van Dyke v. Superior Court, supra; direct contempt is an act committed in the presence of the court or so near thereto as to obstruct the administration of justice, In re Pugh, 30 Ariz. 129, 245 P. 273; and constructive or indirect contempt is an act committed outside the presence of the court, In re Quan, 39 Ariz. 13, 3 P.2d 522.
(The law is the same elsewhere; the leading Arizona case took me 12 seconds to find, for free, on Google Scholar.)
What Deputy Stoddard did was not “indirect civil contempt” as Judge Donahoe branded it, but direct criminal contempt. Which sounds much harsher, but which nets the contemnor more due process (including a show cause order, which was apparently not issued in this case) and a fixed sentence of less than six months, rather than confinement until the contempt is purged (a criminal contempt, being completed, cannot be purged).
Judge Donahoe found Stoddard in indirect civil contempt for something that was neither indirect nor civil, and sentenced Stoddard to be imprisoned until he purges a contempt that cannot be purged.
So how will it shake out? As a student of criminal justice strategy, my guess is that Judge Donahoe’s opinion is a setup for a reversal on appeal, so that the issue can be quietly revisited a year down the road when the press has moved on to something else. Because (with all due respect to Mr. Liddy) as soon as a competent lawyer is representing Deputy Stoddard this contempt ruling is going to go the way of the Sixth Amendment in Maricopa County.