Two months ago, defense attorney Bret Royle released police video showing his client being punched and later mocked by a Mesa officer the night of his arrest.
Not long after that, a Maricopa County prosecutor handling the case against his client accused Royle of misconduct for releasing the footage to reporters.
Royle, however, maintains he did nothing wrong because the Mesa police chief did something similar days earlier, when he released body-cam videos of two other incidents in which officers appeared to use excessive force on unarmed suspects.
Lawyers contacted by The Arizona Republic say the memo, in which prosecutor Riley Figueroa accuses Royle of misconduct, is an exceptional intimidation tactic to keep the defense lawyer quiet. At the same time, they said, it attempts to create a double standard between prosecutors and defense lawyers over who can speak publicly about a public record.
The memo, which was filed in June but wasn’t publicly available for inspection until Aug. 3, comes two months after County Attorney Bill Montgomery sent a letter to police chiefs that details for the first time in writing a procedure that puts his office in greater control of when police records are releasable to the public.
Royle’s client, Jose Luis Conde, is currently charged with aggravated assault, possession of a narcotic drug, escape and resisting arrest. But as his case is pending in Maricopa County Superior Court, the episode has turned into a legal fight over who has the right to release public records, too.
Mesa police body-cam videos from January 2018 show an officer repeatedly punching Jose Luis Conde during a drug investigation. via Mesa Police Department
Lawyers react to memo
“It looks from this memo that the prosecutor is trying to intimidate defense counsel for speaking out and defending their client,” said criminal defense attorney Benjamin Taylor. “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.”
Tom Irvine, a longtime private attorney who previously represented the Maricopa County Board of Supervisors, said the memo appears to be a continuation of Montgomery’s letter.
“The entire policy of the County Attorney’s Office is to chill public access from cases, which is not supported by state law,” he said. “This memo seems just a continuation of that tactic.”
Irvine added that if prosecutors are worried about the release of certain evidence, then they should ask a judge to seal that information and let the judge decide if it could be available for public inspection.
At the time Royle released the police video, criminal cases against the suspects were pending, and criminal investigations into the officers’ actions were underway.
Montgomery said in an email to The Republic that defense attorneys who defend their clients publicly are still regulated by both ethical and criminal procedure rules. Montgomery also pointed to the letter he wrote and sent to police chiefs, mayors and city attorneys in May, which says when police departments can release video for “law enforcement purposes.”
State law says police records are presumed public.
Amanda Steele, a spokeswoman for the County Attorney’s Office, declined to say if Figueroa or anyone else in the office has filed a State Bar complaint against Royle.
“The Office typically does not discuss a possible referral for a defense attorney’s conduct during the pendency of a case to protect the Due Process rights of a defendant,” she said Monday in an email.
What the memo says
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.
Royle asked the judge to strike Figueroa’s memo from the record.
“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.
“If the State has legitimate concerns about potential jury tainting, the State should file an appropriate motion seeking relief,” Moskowitz wrote in a ruling dated July 13. As of Monday, Figueroa hadn’t filed any additional motions.
While Moskowitz’s ruling was favorable for Royle, the attorney has since declined to speak on the record about the status of the case and has referred any questions to court filings.
Jose Conde reads a statement during a press conference about the incident. Arizona Republic
What the rules say
According to the memo, Figueroa says Royle may have violated Rule 15.4(d) of the Arizona Court Rules of Criminal Procedure and Rule 3.6 of the State Bar of Arizona’s Rules of Professional Conduct.
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.”
While Royle received the police report and video through the discovery process, it doesn’t mean it stops being a public record, Irvine said. He added that the rules have to be reconciled.
“Just because something is evidence in a case, it doesn’t mean it should be kept from the public, unless it falls in a category of personal information or other qualifications,” he said. “It’s the notion that if it’s good for the goose it’s good for the gander, and just because it’s an exhibit in a case, it doesn’t change the fact that it’s a public record.”
The police video in Royle’s case shows his client, 23-year-old Conde, lying on a hospital floor in a pool of blood as an officer mocks him. In another clip of the Jan. 28 incident, someone is heard telling Conde “F–k you” and “eat s–t,” as officers try to handcuff him.
When Royle released the video, it deepened the wave of criticism against the Mesa Police Department, which has been under scrutiny for at least two other use-of-force cases that Scottsdale Police Department is investigating to determine whether Mesa officers committed any crimes.
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.”