Civil rights attorney: Using seized funds for prisoner study a legal gray area

Profits from seized property are paying for the latest update to a study of Arizona’s prison population that prosecutors use to argue Arizona’s sentencing laws are working appropriately.

The Maricopa County Attorney’s Office is providing the Arizona Prosecuting Attorneys’ Advisory Council with $34,500 to complete the study. Those funds will pay for the services of John Lott, an economist and pro-gun advocate. Lott will review data provided by the Arizona Department of Corrections to update the Prisoners in Arizona report, first published in 2010. The report uses data provided by DOC to determine who’s in prison and for what reasons.

Bill Montgomery
Bill Montgomery

Maricopa County Attorney Bill Montgomery said the funds come from his office’s RICO account, which comes from seized criminal funds. The payment is a sharp increase from what it cost for the last update of the report, when APAAC spent $14,000.

The use of RICO funds to pay for a study that will in turn be used by prosecutors to lobby against criminal justice reform efforts, such as changes to sentencing law, is questionable, but perhaps not illegal, according to Paul Avelar, an attorney with the Institute for Justice.

Paying for such a study doesn’t fit descriptions in state statute dictating that RICO funds be used to pay for gang prevention programs or substance abuse prevention and education programs, Avelar said. Instead, state law refers discretion over other types of expenses to federal guidelines. But those don’t provide much help either, since spending RICO funds on a study of the prison population doesn’t fit the description of either the permitted or impermissible use of forfeiture funds per the U.S. Department of Justice, Avelar said.

“This is part of the problem with the uses of forfeiture funds. The restrictions are written very vaguely, which suggests, potentially, quite broad uses,” Avelar said.

In an email to the Arizona Capitol Times, Montgomery wrote there is justification under federal guidelines. Montgomery described the Prisoners in Arizona report as a crime reduction tool, which he wrote falls under a broad sentence in the DOJ guidelines stating that “equitably shared funds shall be used by law enforcement agencies for law enforcement purposes only.”

Previous versions of the Prisoners in Arizona report appear to have been paid through APAAC’s own budget, according to an email from Elizabeth Ortiz, the executive director of APAAC. Staff could find no record of ever receiving funds earmarked for the project, she said.

Lott’s fee is the steepest price yet for conducting the report. Fischer received roughly $6,000 for his work on the Prisoners in Arizona study in 2009, and more than $16,000 in 2010, according to APAAC invoices. In 2012, when he was paid more than $30,000, he billed 300 hours of work at a rate of $100 per hour.

His rate was slashed in half in 2014, when he was paid $14,000 for 280 hours of research, according to the invoices.

Fischer is ill and unable to conduct the research this time, according to Ortiz.

Montgomery said the higher cost for Lott’s work is partly because he’s new to the research. Lott has also been tasked with establishing the data in such a way that others will be able to more easily update and analyze it in the future without the help of a statistician or economist.

“I’d like to think that this might be the last time APAAC has to do one of these studies,” Montgomery said.

Prosecutors to create statewide list of dishonest cops


Prosecutors have agreed to create a statewide database of officers whose truthfulness or honesty may be questionable.

But an attorney with the American Civil Liberties Union says it appears to be little more than “window dressing” on what he contends is a flawed system. Jared Keenan said that still gives prosecutors a lot of leeway to refuse to add someone to the list and, more to the point, refuse to disclose to defense attorneys exactly what it is that caused that officer’s name to be added.

And the new database itself is of little use to the public who may want to know more about the police or deputies in their community.

It is searchable only by the name of an individual officer. There is no way for anyone to get a list of all the officers from any individual department who prosecutors or their own superiors have concluded may be less than honest.

In fact, even if someone has a name that scores a hit, it doesn’t show where that person is now working or whether they’re still a sworn officer.

At the heart of the issue is what is known as the “Brady list.” It is named for a 1963 U.S. Supreme Court ruling requiring prosecutors to turn over all evidence to defense that might exonerate the defendant.

That includes the officer’s own history of being truthful.

Elizabeth Ortiz, executive director of the Arizona Prosecuting Attorneys Advisory Council, said Thursday that having a statewide list makes it easier for prosecutors to have access to information, potentially about officers they do not know.

“Because law enforcement officers may change jurisdictions during the course of their career, prosecutors need to have access to information from all Arizona jurisdictions,” she said.

And Ortiz said the list will be publicly accessible.

Jared Keenan
Jared Keenan

Keenan said that’s a plus. But he pointed out that the reasons someone was placed on the list will not be in the database. For that, individuals would have to then file public records requests with individual prosecutors or police agencies.

That information may be important, he said, and not just for those who are arrested. Others may want to know about the records of officers with whom they may be dealing on a routine basis.

And that still leaves the fact that any search has to be performed on a name-by-name basis.

The guidelines adopted by the prosecutors’ council shows a variety of things should require placement of an officer’s name on the Brady list.

That includes intentionally, knowingly or recklessly making false or misleading statements on a police report or other official document. Other factors include race, gender, ethnicity or national origin bias, a pattern of excessive force, or evidence of abuse of power or acts “that could significantly diminish the public’s trust in law enforcement.”

All that, however, presumes that a prosecutor decides to put someone on the list in the first place — and, even then, whether whatever that officer did in the first place is relevant and has to be disclosed to defense attorneys.

“The list is only as good as the information put into it,” Keenan said.

Ortiz acknowledged that nothing in the newly announced changes imposes strict standards to determine whose name goes on the list and what gets released.

“Each prosecuting agency makes its own determination regarding whether information must be disclosed under the law,” she said, saying her agency has developed ” best practices” for prosecutors “to consider in addressing the issue.”

“Most of this is going to be window dressing,” Keenan said of that decision.

He said the problems are deeper than that, particularly for defense lawyers.

“Prosecutors have every incentive to keep officers off a Brady list and not to disclose information,” he said.

“Even when prosecutors disclose information they feel is required to be disclosed under Brady they often fight the use of that information during trial anyway,” Keenan said, arguing to judges that the officer’s offenses that landed her or him on the list are irrelevant to the question of whether jurors should be able to believe the testimony. “Without those things changing, this statewide list I think is going to have very little impact.”

Sometimes it’s not even an intentional desire to keep someone off a list.

There was a 2016 incident at a Marana bar where Tucson police officer Crystal Morales, off duty, had witnessed a fight involving a relative. An internal affairs investigation initially found she was dishonest with Marana police and recommended she be fired.

But no one put her name on the list. It was only after that oversight was discovered that more than 100 criminal cases in Pima County in which she was involved were placed under review.

State lawmakers have attempted to tinker with the rules involving Brady lists, but not in a way to provide for more public disclosure or put teeth into requirements for putting an officer on the list.

In 2019, Rep. John Kavanagh, R-Fountain Hills, sponsored legislation that would have allowed law enforcement officers to actually get their names removed from the list.

What wasn’t disclosed is that the request came from Rep. Anthony Kern, R-Glendale, who was placed on the list after being fired from the El Mirage Police Department for lying to his boss about the loss of a tablet computer. Even Kavanagh said he wasn’t aware of the reason Kern wanted the measure.

Earlier this year Rep. John Allen, R-Phoenix, attempted to add an appeal process for officers to use even before being placed on the list. It also sought to preclude police agencies from using the list in hiring or firing.

That measure was approved by the House but died in the Senate.