Despite Tossing the Pruno Charge, Prosecutor Cannot Take No For Answer

What has developed since then has been anything but routine, as Deputy DA Ryan Couzens has continued to pursue prison time, despite all evidence to the contrary, as Captain Ahab pursued his white whale.  The result was much the same as in the fabled book, as Mr. Couzens ended up not knowing when to take his loss like a professional and simply allow the case to proceed with dignity.

From the start on Friday, Mr. Couzens was determined to raise every issue he could.  He began the proceedings by complaining that the sentencing brief prepared by the defense was not received on the 26th as it was dated, but rather that he only received it on the 27th.

Dan Hutchinson, the Deputy Public Defender, claimed that he personally delivered that document to the DA’s Office on the date that the document states.  Judge Rosenberg stated sharply, “To be frank, that issue raised by Mr. Couzens is of no significance.”

Mr. Couzens was not done yet.  He presented a package of documents to the court to be marked as an evidence exhibit.  He had supposedly just obtained these from the jail and they had just been brought over.  They were records from jail concerning the conduct of Mr Arias while he had been in custody there.

Mr. Hutchinson would point out that Mr. Couzens had revealed them to him ten minutes prior, and he had been shown only the originals and was not given a copy of them.  Following the hearing, Mr. Couzens asked for the document back from the court, but Mr. Hutchinson objected that they were part of the record and should be preserved in the hands of the court.  Judge Rosenberg agreed and Mr. Couzens never received the documents back.

The documents allegedly show that Mr. Arias had “repeated write-ups” while in custody for things such as being argumentative with jail staff and for creating pruno.  He argued that Arias and another inmate attacked a Norteno inmate on September 19, 2010, and did not orally provide any further details or circumstances surrounding this alleged attack. 

Mr. Couzens went on to argue that the court has broad discretion in considering evidence for the purpose of sentencing.  He referenced an “Arbuckle” case where out-of-court statements can be used by the court for sentencing and that live testimony in support of that is not required.

Mr. Hutchinson responded that his reading of the documents (in the time allowed him) turned up some ridiculous examples of disciplinary action against Mr. Arias such as for not wearing his name tag when he was supposed to and not obeying the rules regarding when boxer shorts were and were not allowed to be worn. 

Mr. Hutchinson stated that if these documents had been included with the probation report then they would have some significance for the court to consider, but that as they are, they are nothing more than hearsay statements.

Mr. Couzens argued that the PC 1204 hearing was for considering aggravating and mitigating circumstances for sentencing.  He said that the court can consider any information, so long as it is not patently unreliable. 

Judge Rosenberg responded by asking Mr Couzens, “Do you mean to say that the Court can consider unreliable evidence as long as it is not patently unreliable?”

Mr. Couzens responded that that was not what he meant.  He stated about the last-minute appearance of the documents that, “I did not mean to make this an ambush.” 

He argued that Mr Arias should be sent to prison for a number of reasons.  First, that the court is required to do so.  He stated that PC 1203(k), regarding probation to be denied for conviction of a serious felony does not limit itself to only adults  or only juveniles.  He stated that the intent of the legislature was that probation is the same thing for juveniles as for adults, i.e. probation for a felony.

Mr. Couzens spoke about Probation’s report and said it is puzzling because it uses the word “horrendous” in a number of places to describe Mr Arias’ conduct, and yet recommends probation at the end of it. 

He claimed that it reads as though “2+2+2 = 0.”  He argued that Mr Arias does not deserve probation, that his conduct is of increasing dangerousness, that he has had the benefit of the juvenile system.  According to Mr. Couzens, the probation previously given hasn’t even slowed him down, that Mr. Arias shows a pattern of escalating crime  and that the risk to the community is enormous – that “even when he’s in jail, they can barely control his behavior.” 

Mr. Couzens continued that it is now a fact that Mr Arias possessed a stolen weapon while on probation and that he had it for gang purposes.  He stated that Arias expressed on his MySpace page that he wished to shoot people. 

This is a clear prevarication, as what Mr. Arias had posted was a more generic and possibly fictionalized motto/ prose written by a third party.

Mr. Couzens argued, “He has established his dangerousness.” 

He quoted a case called “Warner” as a sentencing example about when considering whether a person is of danger or not. “The remote possibility could not trump the risk to society,” the case opinion stated. 

Mr. Couzens continued, “Your Honor, everything about Jesus Arias tells us that he is absolutely destined to hurt someone seriously.”  He stated that his hope would be that the prison system would teach Mr Arias to get some restraint and judgment.

In contrast to Mr. Couzens’ frenzied tone was Mr. Hutchinson’s calm and quiet demeanor.  Mr. Couzens spoke loudly and rapidly, becoming almost manic as he got deeper into his argument.

Judge Rosenberg twice had to ask him to slow down in order for the court reporter to accurately record his comments.

Mr. Hutchinson, the picture of composure, spoke briefly and efficiently.  He claimed that technically Mr Arias was a juvenile ward and not on probation.  He continued arguing that Mr Arias is, in fact, eligible for probation. 

He deftly stated that if Mr. Couzens and the Office of the DA thought Mr Arias to be such a huge danger to society, “a ticking time-bomb” as they were currently trying to portray, that they would definitely not have offered him probation in the two months leading up to the trial in exchange for a plea. 

He stated that he cannot vouch for Mr Arias’ future conduct and that no attorney should.  He stated that Mr Arias “has potential to do good with his life if the court gives him an opportunity to start anew.”  He stated that “if he is sent to prison at age 18, the court knows what will happen.  He will either become a victim there or, for his own safety, will have to join a gang.”

Judge Rosenberg largely agreed with the defense.  He found that Mr Arias is eligible for probation and said that “on reflection, I’m going to give him a chance on probation.”

Mr. Couzens, at this point, exhaled and lowered his head.  Judge Rosenberg explained to Mr. Arias the difference in baseball between minor and major leagues and that as an adult now, he was in the major leagues.  He looked directly at Mr. Arias and told him that he had been very close to being sent to prison. 

The judge stated that the main reason he was not sent to prison is that this is his first case as an adult – and that at the age of 18 he is barely an adult in the eyes of the law. 

He continued telling Mr. Arias that he really has to dig deep and change his lifestyle.  He stated that he thought the possibility that Mr. Arias would succeed was not a remote one but rather a reasonable one. 

He said that the information about his conduct in jail “doesn’t give me confidence” and that he would have to make big changes in his life from now on. 

He stated that he would be granting three years of probation beginning that day, that Arias will be under the supervision and control of a probation officer and that he will be released as soon as the jail can process him out.

This is a case where cooler heads prevailed.  Judge Rosenberg was not going to be brow-beaten into denying probation by the claims of a Deputy DA over the recommendation of the Probation Department.  However, the extent and the means by which Mr. Couzens was willing to push for prison time approached near alarming proportions, even as his own department sought to calm things down two weeks ago by getting rid of the troublesome and embarrassing pruno charges.

—David M. Greenwald reporting