Bret Royle Accused Of Misconduct For Being Too Truthful

It’s a sad commentary on the state of policing that a video of the cops beating an unarmed guy, then mocking him as he lay in a pool of his own blood, isn’t huge news in itself. It’s not as if they gunned him down, murdered him, like a dog in the street. And even that might not be enough to catch people’s attention anymore. It’s been done, and we’re so inured to police violence, to the constant din of misconduct and excessive force, that it’s hard for even a graphic video to have legs these days.

Sad.

Even so, Phoenix, Arizona criminal defense lawyer Bret Royle decided that the video of his client being beaten by a Mesa police officer needed to be seen. And so he gave it to the Arizona Republic. For his efforts at transparency, the prosecutor in the case, Riley Figueroa, accused him in a memo to the court of misconduct.

Figueroa’s memo gives a summary of the case and a timeline of other Mesa police’s use-of-force cases and was filed June 25.

She wrote in her two-page memo to Maricopa County Superior Court Judge Frank Moskowitz that Royle may have violated state and ethical rules, and Royle’s conduct may have implications on the case. In a separate court filing, Figueroa said she had concerns of “potential jury tainting” as a result of Royle’s actions.

Stop laughing about the “jury tainting” argument, as there’s the ethical rules to confront.

Rule 15.4(d) says that “Any materials furnished to a party or counsel under Rule 15 (which involves evidence) must not be disclosed to the public, and may be disclosed only to the extent necessary for the proper conduct of the case.”

And State Bar Rule 3.6 says that attorneys are allowed to speak publicly about “information contained in a public record.”

And indeed, Rule 15.4(d), on its face, suggests that any “materials” obtained through discovery must not be disclosed. However, subdivision (b) provides the parameters of “materials,” and this video isn’t covered.

(b) Materials Not Subject to Disclosure.

(1) Work Product. A party is not required to disclose legal research or records, correspondence, reports, or memoranda to the extent they contain the opinions, theories, or conclusions of the prosecutor or defense counsel, members of their respective legal or investigative staff, or law enforcement officers.

(2) Informants. A party is not required to disclose the existence or identity of an informant who will not be called to testify if:

(A) disclosure would result in substantial risk to the informant or to the informant’s operational effectiveness; and

(B) a failure to disclose will not infringe on the defendant’s constitutional rights.

Not only are attorneys permitted by the rules to use public information, but they’re under no constraint to conceal a video provided in discovery regardless. And, as if the cake still need icing:

State law says police records are presumed public.

But then, was the point of the attack of Royle by Figueroa really about disclosing a video? The judge wasn’t buying.

“The State’s filing serves no purpose other than to disparage defense counsel’s conduct in this case, a purpose it disguises as alleged ‘concerns about potential jury tainting’ and ‘preserving the record,’ ” Royle’s motion says.

[Maricopa County Superior Court Judge Frank] Moskowitz agreed.

While prosecutors have little to fear from ethical challenges, the same can’t be said of defense lawyers. Even if there is no foundation for the accusations, no merit to the claim whatsoever, it puts the defense lawyer in a position of having to defend himself from the accusation and still taints the lawyer. After all, prosecutors are so very official, so people take their allegations of misconduct seriously no matter how baseless they may be.

“The prosecutor and police are arms of the state. If the prosecutor and police are allowed to speak about a case to the media, defense counsel should be afforded the same rights and privileges to defend their clients under the law,” criminal defense attorney Benjamin Taylor told the publication. Private attorney Tom Irvine said, “The entire policy of the County Attorney’s Office is to chill public access from cases, which is not supported by state law.” While speaking on the body camera footage, Irvine also argued that “just because it’s an exhibit in a case, it doesn’t change the fact that it’s a public record.”

It goes without saying that when a video shows the cops in a favorable light, or undermines a claim of the defense, it’s out there in a flash for all to see, usually coupled with a press release extolling the cops and prosecutors for their virtuous transparency. When the video shows a cop engaged in misconduct, violence, it remains under wraps for as long as possible. Transparency has its limits.

But the effort by Figueroa serve not merely to cover up her cop’s abuse, as the video was already out there. Rather, the motion attacking Royle for doing his job too well, for being too honest and transparent, was a message to the criminal defense bar: reveal the videos that hurt us and we’re coming after you.

Was it necessary to release the video publicly for Royle to defend his client? Maybe not, although it certainly doesn’t hurt his defense or damage his client’s interest.

The reason why Royle released the video, he said in June, was because he wanted the public to know how his client was treated.

“If I only play this in the secrecy of a courtroom, the only people who would see it would be myself, a judge, prosecutors and a jury,” he said. “I’m not going to diminish the importance of them, but the public should have the opportunity to see what officers are doing behind closed doors.”

Is the interest of the public in being aware of what their cops are doing in their name worth a criminal defense lawyer having to defend himself against prosecutorial accusations of ethical violations? The Maricopa District Attorney’s office is hoping the answer is no. And without seeing this video, without its public disclosure, it’s as if it never happened, even if it didn’t end up with another dead body on the ground so as to sufficiently shock the public into giving a damn.

Bret Royle Accused Of Misconduct For Being Too Truthful curated from Simple Justice