September 21, 2017

Thomas Higgins was recently quoted in an Arizona Daily Star article that details the new tactics of Cartel gangs to recruit smugglers. 

The full article can be read at this link.

March 28, 2017

Although an appeal is, technically, post-conviction relief, I am focusing on what rights a defendant has after a conviction outside of an appeal.  Even if an appeal is “affirmed”, there is another method to review what happened in court and it is known by different names but generally, “Post-Conviction Relief”.  Criminal Rules are found in every state and in Arizona the post-conviction relief is known more commonly by its rule name - Rule 32.  This blog only refers to state post-conviction proceedings, the federal proceedings will be covered in a different summary.

If you are convicted it will be by a plea agreement or at the end of a trial up...

March 21, 2017

Even some lawyers mess up the distinction between an opening statement and a closing argument.  If you look closely at the phrasing, it's easy to see that a statement is different than an argument.  In an opening statement, the attorney or self-represented party will make an offer of proof to the judge or jury about what the evidence is going to be.  Good trial attorneys typically tell a story about what happened and what will be supported by the evidence to be presented.  Argument about that evidence, however, is for closing.  

In a closing argument, all the evidence will have been presented to the judge or jury and the attorney or...

March 15, 2017

A new case came down from the Arizona Court of Appeals, Division II, in November of 2016.  The case is Sherman v. Sherman, CA-CV 15-0201 FC (App. 2016), and creates a line of precedent unlike anything seen before in Arizona.  In the Sherman case, the court ordered that a “revolving credit line” between the father and his cousin and her husband be attributed to his income for purposes of child support. It was a $100,000 line of credit and the father had utilized $35,000 of it in approximately six months.  The Court based this ruling on two items: first, that father had not shown any significant changes to his lifestyle or expenditures, and second, that...

March 9, 2017

In criminal cases, it's common for cases to take longer than expected for various reasons.  Any misdemeanor or felony case in Arizona, and in Pima County specifically, has "case management conferences" or "status conferences" that are held about once every month or so.  They are the courts method to make sure the case is moving along.  The parties will verify or deny that disclosure (police reports, witness statements, lab reports, etc.) are disclosed, whether or not the parties are moving towards trial or attempting to resolve the case in a plea agreement, or any other issue that may have arisen.    

What about my speedy trial right...

February 3, 2017

 The United States has been in a wave of “victimization” since the late 1980's.  Many, many states and the federal government have codified the rights of victims, in what are usually called Victim’s Rights Bills”.  Arizona is one of those states.  It seems that society as a whole has become wrapped up in being a victim.  One only has to look at the skyrocketing rates of disability claims, the rise of post traumatic stress disorder diagnoses (PTSD), the legislatures that have jumped on the bandwagon to protect so-called victims and even the growth of people using “service dogs” to see how politically correct it has become to be a victim of something....

December 30, 2016

 Despite the slow erosion of individual rights in the courts, the way open to attacking drug cases revolve around pretrial motions. I only pick a few for argument’s sake but any defense attorney worth his briefcase will have many, many more avenues of attack. But I will comment here on a so-called “typical” case. Let’s say we have a vehicle stop, search, two occupants and a discovery of 200 pounds of marijuana in the trunk. In some jurisdictions this is a huge amount, in Arizona, not so much. I did a case in Illinois once involving 3000 pounds of marijuana and the judge said “Mr. Higgins, I imagine being from Arizona means that this case is not much of...

December 12, 2016

 Attorney Maggie Higgins Schmidt weighs in about this recent issue concerning cops and their body cameras: 

"A curative jury instruction should absolutely be given when an officer equipped with a body camera does not use the body camera during an encounter with a civilian."

Click on the link below to read the full news item:

December 1, 2016

So, you are charged with a crime in the United States.  Too bad, too bad for you.  Hopefully you are not taken in by the grand and wonderful concepts like “Rights of the Individual” or, worse,  “I know my rights”.  Maybe you think that the courts are there to protect those rights.  Maybe you think that the fact that you are innocent or any wrongdoing will make a difference.  Please disabuse yourself of all that. 

The United States has 5% of the world’s population but 25% of the world’s prisoners.  The United States now has more people in custody now than the Soviet Union, at its height, and Communist China, combined.  So mu...

November 22, 2016

Many years ago, novelist Kurt Vonnegut published a series of short stories entitled “The Sirens of Titan” (1959).  My favorite story was about the Prison Planet.  I am remembering from about forty years ago but, basically, a space traveler (Malachi Constant) and his dog land on the prison planet and are promptly arrested when the hero gives his dog some beer to drink.  At the time he landed there one third of the planet was in prison, one third was administering the prison population and one third were the remaining citizens.  At his trial, his defense attorney was arrested and Malachi was convicted.  While on appeal, the Supreme Court was arrested and...

October 20, 2016

Often clients or prospective clients will ask: when does the child's opinion matter to the Court?  When can they decide where they want to live?  Some clients believe the age is twelve or thirteen years old but there is no hard and fast age that the Arizona Courts will then automatically listen to the child's opinion.  

The Court may determine a child is too young to voice their opinion, and/or the court may be concerned about one or both parents having too much influence over the child at their age.  In Pima County, the Court can order that a child be interviewed by the Conciliation Court.  In this interview, a trained professional with the C...

September 25, 2016

Everyone has seen the court TV shows and movies depicting court rooms and procedures, but being there in person is a different beast, especially if it's your first time.  Here are key things to remember:

1. Stand when the judge enters the room and sit when they say "please be seated."

2. When addressing the court, refer to the judge as "Your Honor."  Speak up for the court record. 

3. Do not speak over other parties, the judge, or court room staff.  Treat the judge and the court room staff with respect.  The only interruption that is acceptable is to object when the opposing party is presenting objectionable evidence.

4. Avoid making gesture...

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