Professional Documents
Culture Documents
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8 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
9 IN AND FOR THE COUNTY OF PIMA
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6 JURISDICTIONAL STATEMENT
7 1. The foundational issue of this case, in which Respondent Tucson City Court Judge
10 instead applying the different standards set forth for the appointment of counsel for
13 2. The underlying facts which give rise to the pure issues of law presented in this
14 Petition are not in dispute. The issue concerns a denial of the fundamental right to
15 due process guaranteed by both the constitutions of Arizona and the United States of
16 America.
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1 OUTLINE OF PROCEDURAL HISTORY DATE
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Petitioner files Motion for Appointment of Expert Witness December 20,
in Tucson City Court. 2010
Respondent Judge Berning Denies Petitioner’s Motion for February 14, 2011
Appointment Expert Witness.
Respondent Judge Berning Grants Petitioner’s Motion for March 8, 2011
Stay.
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4 STATEMENT OF THE ISSUE
14 3. On or about March 13, 2006 Petitioner’s common law wife, employed as a faux
15 finisher and artist, suffered the devastating loss of vision in her left eye
19 5. On January 29, 2007, Petitioner brought his wife to COPE for treat-ment, which
21 6. Several months later, COPE doctors commenced what was to become a four year
24 and Diazepam.
25 7. Over the next year, exacerbated by the continual change in her medications,
2 symptoms, including but not limited to rage, irrational anger, violent outbursts,
4 COPE reports.1
5 8. Over the next three years Petitioner’s wife was hospitalized on at least four
10 10. On May 24, 2008 the Tucson Police Department (TPD) responded to a report of
13 11. Petitioner called 911 the following day to report additional domestic disturbance;
14 TPD responded and Petitioner’s wife was arrested for domestic violence and
15 disorderly conduct.
16 12. On June 24, 2008 Petitioner’s wife was arrested for DUI.
17 13. On June 26, 2008 TPD Petitioner again called 911, TPD responded and arrested
19 14. Over the next year TPD officers responded on at least three additional occasions
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Astonishingly, Petitioner’s wife manifested the exact symptoms well documented as
adverse side effects of two of her prescribed medications, Clonazepam and Diazepam.
See Exhibit One
1 15. During one of these occasions, TPD officers, in sum and substance, informed
2 Petitioner: “We’re getting tired of coming out on all these domestic violence calls.
3 You better move out or one of these days we’re going to start arresting you,” to
4 which Petitioner responded to the officer, in sum and substance: “If I leave the
6 16. The officer sympathetically replied, “I guess you are between a rock and a hard
8 17. On July 28, 2009 Petitioner’s wife was taken by ambulance, admitted to
9 University Medical Center and kept under observation for several days for an
11 18. On August 10, 2009 TPD officers responded to a domestic violence call at
22 distress and resultant domestic violence. This time TPD officers arrested
24 20. On April 16, 2010 Petitioner again called 911 regarding his wife’s emotional
25 behavior. TPD transported her to Saint Mary’s Hospital where she was admitted
2 Petitioner’s residence. (case #2) TPD officers arrested both Peti-tioner and
3 Petitioner’s wife.
5 motion filed by the Tucson City Prosecutor which stated they were “…unlikely
6 to obtain guilty at trial,” dismissed the charges against Petitioner in case #2.
7 23. On December 20, 2010 Petitioner filed his Declaration in Support and Motion for
10 24. As provided by State v. Cornell, 179 Ariz. 314 (1994), and State v Watson, 120
16 erratic and explosive emotional behavior. TPD officers arrested Petitioner’s wife
17 and charged her with assault/domestic violence and booked her into the Pima
18 County Jail.
19 26. Subsequently; at Petitioner’s wife’s bail hearing on December 28, 2010, Petitioner
20 made an impassioned plea for his wife’s release, on the basis of her medical
21 condition, so she could return to COPE and seek additional treatment regarding
25 27. Subsequently; Tucson City Court Judge Wendy Million released Peti-tioner’s
27 28. On January 03, 2011, in compliance with the Court’s directions, Petitioner and
28 his wife met with a COPE medical specialist who immediately increased the
3 29. Subsequently; over the next several months Petitioner’s wife’s mood significantly
6 30. On February 14, 2011 Respondent Judge Thomas Berning denied Petitioner’s
20 Special Action.
21 32. On April 08, 2011, based on COPE reports, a Declaration Petitioner had
22 previously submitted to the Court, and other documents regarding his wife’s
23 medical condition Petitioner had presented to his wife’s appointed counsel, the
24 state agreed to allow Petitioner’s wife to enter into an “informal diversion” on all
25 four of her domestic violence cases, the significant provisions being: (1) she
26 would not be required to change her “not guilty” pleas in any of the four pending
27 cases, (2) she would continue treatment at COPE for the next several months, (3)
3 ARGUMENT
7 Mason v State of Arizona cited by the trial court in its order denying Petitioner
10 finds two sole criteria for proper judicial determination: (1) Petitioner must set
11 forth “good reasons” for the appointment, and (2) Petitioner must demonstrate he
13 39. In the above cited cases, the various defendants were facing consequences arising
14 out of their convictions for capital murder, murder in the second degree, assault
16 40. In none of the cases, including the capital murder case, did the re-viewing court
17 consider that severity of sentence was a proper criteria for judicial consideration
18 to resolve the question of whether or not the appellant was entitled to the services
20 41. In none of the cases, including Mason, does the reviewing court grant the trial
21 court the option to ignore the standards for appointment set forth in Arizona Rules
22 of Criminal Procedure Rule 15.9(a), by substituting instead the standards set for in
24 42. In all of the cases, including Mason, the Court reversed, or affirmed, depending
25 solely on whether or not appellant had (1) provided “good reasons” for the
2 appointment.
3 43. In the instant case, Petitioner has provided the Court with an extensive factual
4 picture regarding his wife’s profound medical history, her use of prescribed
5 medications which are well known to have serious side effects, and the dismissal
6 of all the charges in her four domestic violence cases on the basis of her response
8 44. Moreover; as clearly set forth in paragraph 24, Petitioner apprised the trial court
14 45. Petitioner, at best a well informed layperson, reasonably anticipates at trial the
16 regarding his wife’s response to her use of prescribed medications, etc., on the
18 46. Moreover; in the event the trial court does allow Petitioner to testify on medical
19 issues, he reasonably anticipates, on the basis of his non-expert status, the trial
20 court will place little value on his testimony regarding medical issues.
22 provided by Rule 15.9(a), Petitioner earnestly believes he has set forth “good
1 reasons” for the appointment and has demonstrated he will suffer “substantial
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4 CONCLUSION
5 In his 2009 address to the Rogers School of Law John Roberts, Chief Justice of
6 the United States Supreme Court, cited two favorite questions former Chief Justice John
8 (1) "'You say that's what Congress meant. What did Congress say?'" (2) "'Which
10 Petitioner has carefully read the Arizona Rules of Criminal Procedure and the
11 opinions of the cases cited herein and respectfully submits: the judges who wrote them
12 wrote clearly, without excess verbiage or ambiguity. They said what they meant and
14 In the instant case, Respondent Judge Berning simply does not have the authority
17 Frankly; Petitioner agrees with Respondent Judge Berning that Mason v State of
18 Arizona does set forth Arizona law regarding the appointment of expert witnesses for
19 indigent defendants; Petitioner simply cannot find any part of the holding or rationale in
20 Mason (or the other cases cited herein) to support Judge Berning’s (implied) contention
21 that severity of possible sentence, or the application of Rule 6.2 for that matter, has any
22 bearing on whether or not due process requires the appointment of an expert witness in
2 Lamar and Peeler, Petitioner provided the trial court “good reasons” why he required the
3 services of an expert witness, and why the denial of expert testimony to interpret and
4 render an expert opinion on the data contained in the various medical reports, police
5 reports, reports on the dangerous effects of Clonazapam and Diazapam, etc., would
7 Petitioner is forever mindful of the need for judicial economy in these days of
9 However Petitioner earnestly submits: Arizona law is clearly set forth in the
11 The law is the law, and regarding the appointment of an expert wit-ness as
14 PRAYER
16 A. Reverse the trial court’s order denying Petitioner the appointment of an expert
17 medical witness and remand back to the trial court for further proceedings,
21 BY
22 _________________________
23 Roy Warden, Petitioner
24 In Forma Pauperis
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