Free Reply to Response - District Court of Arizona - Arizona

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Barbara Hull, State Bar No. 011890 86 West University Drive, Suite 101A Mesa, Arizona 85201 Telephone: (480)834-0002 Facsimile: (480)834-0003 Attorney for Defendant Robert McKay
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiff, vs. ROBERT MCKAY, Defendant.

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Case No.: CR-03-1167-16-PHX-DGC DEFENDANT ROBERT McKAY'S REPLY REGARDING MOTION FOR PROTECTIVE ORDER (Assigned to The Honorable David G. Campbell) (Expedited Ruling Requested)

Defendant, Robert McKay, through undersigned counsel, hereby submits his Reply to the Responses filed by both the Government and the private counsel retained by CCA/CADC. Again, Defendant submits a Additionally, as the protective order is not only warranted but required.

Government has deferred to CCA on the issue of its records kept in this regard, and the CCA/CADC Response does not address this issue, the defense asks this Court to enter its Order directing CCA/CADC to immediately provide undersigned counsel all requested records and reports.

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MEMORANDUM OF POINTS AND AUTHORITIES The Government's Response attempts to shift blame to CCA for its conduct in hopes that this Court will treat CCA as a separate entity for purposes of considering pretrial detention violations of Mr. McKay's constitutional rights. Yet, the Government, in the apparent alternative, claims that CCA has a right "to question inmates regarding gang affiliation, a fact relevant to inmate safety." (Gov. Response, page 1, lines 25-27.) Bruno Stolc's affidavit only addresses two interviews, namely that conducted upon his initial incarceration on September 3, 2004 and the second on September 20, 2005. The Government claims CCA has a right to question about "incidents that occur within the facility." (Id.) Yet, Stolc's affidavit says nothing about any alleged incidents requiring any investigation at all. Stolc's affidavit, as prepared by his counsel, at page 3, paragraph 13 alleges that Mr. McKay "has pending criminal charges for homicide." This statement is clearly false and therefore raises a whole set of other issues. Relevant here is that it is utilized purportedly to justify CCA's questioning at intake and assignment of security level. But the intake questioning is not all that is at issue here. Inquiries of Mr. McKay about Hell's Angels not incarcerated and about one at large charged in this very case cannot serve any legitimate "internal" administrative purpose. The clear purpose of the questioning, and the punishment for Mr. McKay's refusal to respond to that questioning without his attorney present, is clearly aimed at facts involved in this case. If ATF is not involved, the Court should question what interest CCA would have in punishing Mr. McKay for his refusal to respond to questions about his pending charges. The Government submits Bell v. Wolfish, 441 U.S. 520 (1979) for its proposition that the law allows CCA to question inmates regarding gang affiliation

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without violating constitutional rights. Upon review of this case, one must first review the issues raised there: "Respondents charged, inter alia, that they had been deprived of their statutory and constitutional rights because of overcrowded conditions, undue length of confinement, improper searches, inadequate recreational, educational, and employment opportunities, insufficient staff, and objectionable restrictions on the purchase and receipt of personal items and books." 441 U.S. at 527. The Court then addressed each complaint issue, for example "doublebunking" as it was called by the complainants. However, the Supreme Court in that case addressed the lower court's use of the Due Process Clause and the presumption of innocence to determine whether the detention center was subjecting pretrial detainees to constitutionally violative conditions. In overturning the lower court, the Supreme Court expressly found the following: "We do not doubt that the Due Process Clause protects a detainee from certain conditions and restrictions of pretrial detainment. See infra [Coffin v. United States, 156 U.S. 432 (1895)], at 535-540. Nonetheless, that Clause provides no basis for application of a compelling-necessity standard to conditions of pretrial confinement that are not alleged to infringe any other, more specific guarantee of the Constitution." [Emphasis added.] 441 U.S. at 533. " . . . Instead, what is at issue when an aspect of pretrial detention that is not alleged to violate any express guarantee of the Constitution is challenged, is the detainee's right to be free from punishment, see

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infra, at 535-537, and his understandable desire to be as comfortable as possible during his confinement . . ." 441 U.S. at 534. [Emphasis added.] The Wolfish Court went on to state, "Under such circumstances [pretrial detention], the Government concededly may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution." [Emphasis added.] 441 U.S. 536 -37. Here, Defendant has alleged very specific constitutional violations as outlined in his pleadings regarding Massiah. Wolfish does not address any of those types of issues, does not address post-arraignment/pretrial questioning, right to counsel, right to remain silent, or any other on-point constitutional question. In fact, all of the relevant language in Wolfish includes the express caveat that this ruling assumes no other constitutional violation. Such is nowhere near the case here. The Government also cites United States v. Danielson, 325 F.3d 1054 (9th Cir. 2003) for its proposition that the Sixth Amendment is case-specific. What Danielson says is that "The government's use of . . . Danielson's statements regarding separate offenses for which he had not been indicted, such as jury tampering and suborning perjury, was not an impermissible intrusion into the attorney-client privilege and therefore did not violate his Sixth Amendment rights.

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See Cobb, 532 U.S. at 173. The information sought and obtained . . . , however, was not limited to information regarding separate offenses. . . . Government actions that deliberately elicit incriminating statements from an indicted defendant in the absence of counsel are improper under the Sixth Amendment. See Moulton, 474 U.S. at 176-80; United States v. Henry, 447 U.S. 264, 274 (1980); Massiah v. United States, 377 U.S. 201, 206 (1964)." Interesting they should specifically give deference to Massiah. Also interesting is that no explanation is given for why Mr. McKay had to be subjected to yet "another initial interview of McKay on September 20, 5005 [sic], when McKay was re-admitted to the Central Arizona Detention Center," if he had already said on September 3, 2004 that he was a member of the Hell's Angels? Stolc Affidavit, page 4, paragraph 16. continued questioning. CCA's Response spends considerable paper alleging that the Hell's Angels is a group "operating in most prison's [sic] in the United States today," and that this group, if unchecked, will "create havoc" according to Stolc's attorney [CCA Response, page 3] or "substantially affect the safety and security of a prison" according to Stolc. Stolc affidavit, page 3, paragraph 11. No facts are alleged in support of this contention that Hell' s Angels is a " group" that will " create havoc." More on point is the fact that Mr. McKay's only incident since incarcerated in Nor is an explanation given for the

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CCA occurred when he was written up for refusing to leave his cell -- when he didn't refuse -- as outlined in his Massiah pleadings. Such is the "havoc" created by Mr. McKay. Neither of the cases cited by CCA counsel are on point, as both involve sentenced defendants and civil redress. Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078 (03/04/1986) was a civil rights case brought under 42 U. S. C. § 1983: "This case requires us to decide what standard governs a prison inmate's claim that prison officials subjected him to cruel and unusual punishment by shooting him during the course of their attempt to quell a prison riot." Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (06/01/1987), also authored by Justice O'Connor, is another civil case that "requires us to determine the constitutionality of regulations promulgated by the Missouri Division of Corrections relating to inmate marriages and inmateto-inmate correspondence." Both cases involve sentenced inmates and weigh sentenced inmates' constitutional rights against limited deference to internal administration. Neither case deals with pretrial detainees whose Sixth Amendment rights still attach, neither case addresses the constitutional rights at issue here, and neither case stands for the proposition that limited deference to be accorded prison security interests outweighs Mr. McKay's many constitutional rights. Neither of the Responses addresses the real issue: Mr. McKay has been charged with a crime alleging, in part, his association with the Hell's Angels and

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crimes alleged to have been committed in aid of that group. Neither of the Responses address why, on September 28, 2005, CCA C.O. Fairchild asked Mr. McKay if he knows "Sonny," Sonny Barger, or another alleged Hell's Angels member that goes by the name of "Snake." Neither of the Responses addresses why, when Mr. McKay left CCA on September 8, 2005, he had been housed in unit 700 where housing was three inmates per room, and upon his return -- with no additional charges -- he's housed in 400G unit with 12 inmates per room. Neither Response explains why CCA would establish Mr. McKay's security level considerations to include a non-existent escape history, an unfounded allegation of drug use, a non-existent homicide charge, nor provides any facts to support its contention that Hell's Angels presents any security threat at all. Most importantly, neither Response explains why Mr. McKay is repeatedly confronted by CCA personnel questioning him -- during and after intake -- about the Hell's Angels, what members he might know, or if he knows the whereabouts of at-large codefendant Eischeid. The Government claims questioning about "internal" mat ters is justified. Warden Stolc doesn't address this questioning at all. When Mr. McKay is in custody on charges that he committed a violent act in aid of racketeering, allegedly on behalf of a group named the Hell's Angels, and employees of CCA, under contract with the United States Government and therefore agents of the United States Government, repeatedly question him about

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that affiliation, we're not talking about "double -bunking." We're not talking about prison safety. We're talking about the fac tual allegations in his case. The

Government cannot excuse this conduct by professing "inmate safety" and relinquishing responsibility to CCA for this type of conduct. Neither the Government nor CCA have cited any legitimate interest served by the continued questioning of Mr. McKay. Neither party has cited any prejudice or harm it would suffer by this Court's issuance of a protective order. In fact, CCA's Response claims questioning has only been necessary at intake to inquire into alleged gang affiliation. Mr. McKay' s intake is complete. No further inquiry is warranted. Mr. McKay has satisfied his burden on this issue and asks for relief. WHEREFORE, Mr. McKay asks that this Court render all relief this Court deems appropriate, including but not limited to issuing the Order requested in the original Motion and ordering immediate disclosure of the records requested. RESPECTFULLY SUBMITTED this 13th day of September, 2005.
____/S/__Barbara L. Hull___________

Barbara L. Hull, Attorney for Mr. McKay Original filed electronically this date. Courtesy copy of the foregoing Motion sent via email this date to: The Honorable David G. Campbell United States District Court 401 West Washington Street Phoenix, Arizona 85003-0001 at [email protected]
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Copy sent via email this date to: Timothy Duax, Esq. Assistant U.S. Attorney Two Renaissance Square, Suite 1200 40 North Central Avenue Phoenix, Arizona 850034-4408 at: [email protected] Daniel Struck, Esq. Jones, Skelton & Hochuli, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Counsel for CCA/CADC at [email protected]

___/S/ Barbara L. Hull____________________

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