The latest episode of the AZ Big Podcast with Michael & Amy has officially dropped. Episode 248 features Clark Derrick and Myles Lewallen, who talk criminal defense.
Listen to more of the AZ Big Podcast here.
Transcript:
Michael
Welcome to the AZ Big Podcast sponsored by Burch & Cracchiolo. I'm Michael Gossie, Editor-in-Chief at AZ Big Media, and I'm joined by my co-host, our Vice President and Publisher, Amy Lindsey. Amy, very excited to have these guys in here…Amy
This is going to be an interesting topic. Whenever you can talk about crime on a podcast, it's gold, solid gold, right? One of my favorite things to listen to.Michael
Clark Derrick of Council, and Miles Lewallen, Associate at Burch & Cracchiolo. Guys, thanks so much for being here today.Clark
Thanks for having us.Miles
Yeah, thank you very much.Amy
Thank you for joining us. Can you tell us a little bit about your legal practice?Clark
Yes. I think I was beginning to tell you before we came on the air here that this is my 53rd year in practice, started out in 1972 in a criminal defense environment. I went straight to work with John Flynn, who was the famous lawyer that took the Miranda case to argument before the Supreme Court. So that's where I got my start—doing criminal defense work, and I've done that ever since. Always here in Arizona. Always in Arizona. Fantastic. But with a lot of work sometimes out of state too.Amy
And Miles, you're being featured in our Generations of Leadership feature that's in the May issue of Arizona Business Magazine, and you have one of the most amazing stories I've ever read. You dropped out of high school. At 19, you decided to get your GED. So walk us through that decision—how did that part of your life go, and how did you bring it all together? You're such an inspiration to so many kids who are struggling. Your story is great.Miles
Oh, well, thank you. I appreciate that. So in high school, I wasn't a very good student. I had some pretty bad grades, and there were some personal things in my life, and bad grades combined with that—I dropped out the second week of my junior year and went to work, working full time. I didn't have a very good job—I was up on roofs doing solar work, out in Yuma and San Luis in the sun.I think by the time I was 19 or 20, I just decided: I don't wanna be up on roofs anymore, and I wanna work in an air-conditioned office. So I went and got my GED, started at community college, and I did great. I don't think I would've done that well had I not been in the workforce for a couple of years. I took it very seriously and went to ASU, did great, then went to ASU Law and did great—4.0 average in undergrad, summa cum laude.
In law school I didn't do quite that well, but I still did pretty good, and ended up at Burch & Cracchiolo. I was there my first summer in law school, and during the school year I was interning at a criminal defense firm. When I graduated, everybody knows Clark Derrick—he's an icon, a legend in the industry. I kept pestering him: "Let me work with you." He was like, "Oh, no, no, no," but I stayed persistent, weaseled my way in with him, and now we love working together. We've got really good chemistry.
Amy
That's great. So what was it about criminal law that attracted both of you to the practice?Clark
Well, as I said, I started out that way right out of law school. Had it not been for working with John Flynn—who was just fascinating to work with, the best lawyer I've ever seen or watched, and a wonderful guy—he was like a mentor, a sort of surrogate father to me. He loved the practice of criminal law, and right out of law school I was looking at big, huge cases—representing Ned Warren, Winnie Luke Judd in the trunk murder case.Six years previously he'd argued the Miranda case before the US Supreme Court and got a very famous decision out of Chief Justice Earl Warren. So had I not been in that environment, I might have gotten somewhat cynical and decided to move on to something else. But he was really something.
Amy
And Miles, what was it about?Miles
Well, in law school I first started not knowing what I wanted to do. I didn't have any lawyers in my family, didn't really know any lawyers, and I was thinking I'd try a little bit of everything—initially thought maybe corporate law. But I did the internship at a criminal defense firm, working pretty high-profile felony cases. It was just me and him in a solo firm, so I was working my butt off—40-hour weeks in law school.Amy
While you were in school?Miles
Yes, while I was in law school, yeah. He paid me pretty well, though, so it was okay. And we got along great, but I loved it. The first time I started doing it, I loved it. And you're in a very unique position—a lot of these people are accused of committing heinous things, and a lot of times you're their only friend in a way. A lot of their families will abandon them, but you get to fight for their rights and make sure they're treated fairly. And it's a good feeling.Amy
That's great. So let's talk a little bit about criminal sentencing in Arizona. How does it work? Are there any big changes or anything coming in that area?Clark
Well, in 1993, we had the introduction of truth in sentencing in Arizona. Up until that time, judges had a lot more discretion. If you were sentenced to prison, you'd get one-day credit for every two or three days served—sometimes out in half the time. With truth in sentencing in 1993, parole went away, and there was no more one-for-two or one-for-three time. Everything became 85 percent—you did 85 percent of your time, with no really earned release credits except a small portion at the end.Many cases became mandatory sentencing—all dangerous crimes and violent crimes. Crimes committed with a dangerous instrument or deadly weapon are all mandatory regardless of whether it's the first offense. It's a question of how much time. You had practically 90-some percent of all cases carrying mandatory sentencing, except for a very few garden-variety felony cases that were first-offense probation-eligible.
As a result, sentencing became more a question of sentencing the offense rather than the individual. The individual was sort of taken out of the formula, which was very unfortunate—not everybody convicted of armed robbery should be treated the same way. People are different. Some have grown up in dysfunctional families, others have had mental health issues, drug addiction problems.
So it became very incumbent upon a defense lawyer to spend a great deal of time humanizing and personalizing the client. I do that on a regular basis in every single case I have—who are they, who are their siblings, what's their background, mental health history, where did they go to school, where were they born, what are their likes and interests?
Because if you have credibility with the people you're dealing with—prosecutors, probation officers, judges—and you start talking about this individual over and over, they start to say: "My goodness, Clark cares about this person." As a matter of fact, I do. I think that's why I do the practice I do. I care a great deal about my clients, and that's one of the reasons I do criminal defense work.
Michael
Miles, how much does your background—you didn't take the normal route to law school—how much does that struggle and the challenges you faced help you in identifying with some of your clients and helping see them through what's arguably the worst times of their lives?Miles
Right, I definitely think it helps me. I think it's really important to realize that these people are just humans too, right? Even if they're looking at life in prison for some horrible crime, they're still people and they still deserve to be treated fairly. Like Clark said, everybody has a different background, everybody goes through different struggles, and we don't know exactly what about this person caused them to do this thing they're accused of doing.I think it's really important that you're able to look past the paper that says "this is an indictment" and look at the person and have some compassion as a human being to another human being. Because everybody goes through different struggles in their own way.
Clark
Well, and the stakes can't be any higher.Miles
No, they can't. Right, absolutely.Clark
Some people talk about money as something very important—and it is—but when you're starting to talk about someone's freedom, it's entirely different.Miles
Yeah.Michael
Sorry, I was going to say—we have so many questions for you guys, but before we get to them, I have to say: at Burch & Cracchiolo, there's nothing artificial about our intelligence. While we wholeheartedly embrace technology in all the ways that can increase productivity, nothing will replace the sound judgment, wise counsel, and the humanity of an attorney who is vested in you, your business, and your family. Burch & Cracchiolo attorneys will be there for you no matter what your need.We are your partner for life. Learn more at bcattorneys.com. That's bcattorneys.com.
So can you guys tell us about a brief description of the process of a criminal case—from when law enforcement gets involved through sentencing? What does that look like?
Miles
Right. Normally it starts out with somebody making a report to a police department, and then the police department will assign investigators who will investigate the crime. A lot of times detectives get involved. It depends on the crime and how serious it is. For financial crimes, those investigations can take years. For something like a hit and run, it could take a couple of days. It varies greatly.The investigation gets wrapped up, the police write their reports, package it all up, and send it off to the prosecuting authority. A lot of misdemeanors get sent to the city attorney's office, or if it's a felony, that gets sent over to the Maricopa County Attorney's Office. Then they look at everything and can do one of two things: file a direct complaint with the court (laying out your charges), or take it to a grand jury.
Arizona's grand jury system is a little bit different from the federal one. One of the big differences is that we have a right to the grand jury material here as defense attorneys. So when the prosecutor takes something to the grand jury—there are members of the community who are hauled in, the prosecutor's in there, and the famous saying is "you can indict a ham sandwich at a grand jury." That thinking has changed a little bit recently—some ham sandwiches have gone unindicted.
But the prosecutor brings in the grand jury, lays out the evidence, and the grand jury votes whether or not to indict the person. As criminal defense attorneys in Arizona, we have a right to the grand jury transcript. We get to see everything that happened. Whereas in the federal system, you have to make a particularized showing—show that there's a need for the grand jury transcript.
Amy
Oh wow.Clark
So it's—we have a little bit more access to it here, which is good. Because we look at everything very closely—you do have, as a criminal defendant, a due process right to a fair grand jury. So if the prosecutor brings in the detective who's investigating and the detective says something that's not true or stretches the truth, we get to fight that. We have some experience doing that.Some recent success—getting big cases sent back to the grand jury because there are people in there who aren't telling the truth. And it's really important, I think, for our law enforcement that all of that is above the board. And that just protects everybody.
Michael
How big a high is that, when you identify something like that?Clark
Oh, that's—the bigger high is when you win it, and you're leaving court after you get a good ruling. But there's nothing like it. There's nothing like it.Michael
Clark, I have to ask—is your approach to handling a white-collar crime different than your approach to handling a violent crime?Clark
Well, a white-collar crime invariably is a financial crime, or involves finances. One of the big differences I've found is that the individuals you're representing are generally—and this is generally speaking—businessmen who have stepped over the line. But a lot of those businessmen say, "Well, that's just aggressive business practices." And so because of that attitude, it's more difficult dealing with a client in white-collar offenses.They have a very difficult time accepting responsibility for something that they've done when all they're doing is being anti-competitive or whatever the situation may be. You're dealing with street crimes—you're dealing with somebody who knows they've done something wrong and looks to you for help. And frankly, those cases—they're not less challenging, but they're more, in a sense, more gratifying because of the client that you're representing.
And you'd say, well, my gosh, you're representing CEOs as opposed to somebody like Ernesto Miranda, who committed rape and kidnap?
But that person is invariably more personable and more human than the person that you're talking about as a CEO.
Michael
Wow, that's…Amy
I was going to say, yeah, that's a little mind-boggling, isn't it?Clark
Yeah. Yeah.Amy
So what is the best advice you can give someone who's facing a criminal charge in Arizona?Clark
Well, first of all, when somebody is arrested, you hope they get ahead of it—get a hold of you before they're charged. Many lawyers take the attitude that when somebody comes to them, they're under investigation. Too many lawyers, frankly, say, "Well, maybe you won't get charged. Let's wait and see what happens when you get charged, and then we'll tackle our strategy." I don't do that. I think you need to be very proactive from the very beginning.You have to jump right into the investigation, gather as much mitigating information that lessens the severity of what the charges are, and start presenting those—not just to the prosecutors in the charging bureau, but before that, to the law enforcement people investigating the case. You get a hold of the case agent—down in the Phoenix Police Department or the detectives—and you start to talk about your client.
They can't share a lot with you because it would compromise the integrity of the investigation before charges. But they do a lot of listening, and if you present enough of that kind of information, you can sometimes change the course of what's actually going to be charged as opposed to what would have been charged had you not done that.
Amy
It makes a big difference. Miles, what would your advice be?Miles
Get a lawyer and don't talk to anybody. That's the best advice I can give you.Clark
That's good advice, too.Michael
Yeah, remember your Fifth and Sixth Amendment rights. You tell them, "I'm invoking my Fifth and Sixth Amendment rights to remain silent and the right to an attorney," and then they can't question you anymore, and you just get to talk to your lawyer. Because most people think they can wiggle their way out of things. Most people think they're better smooth talkers than they are. But the police—this is what they do.A lot of these guys have got 20 years of experience getting confessions out of people. They'll have you think you're talking your way out of it, but you're not.
Michael
Okay, last question. Clark, you mentioned how important it was to you to have a mentor early in your law career. Miles, how important is it to have this guy as a mentor as you move forward in your career?Miles
It is incredibly important. Clark is a phenomenal mentor. He's always there for me. We work so closely together—I think it surprises a lot of people. Anytime we're talking to people, we're talking to them together. And I'll call him four or five times a day and ask him questions, and he always picks up the phone, and he's fantastic.I'll tell you, my first oral argument in court—actually, it wasn't scheduled for that day, and me and Clark were there together, and the judge called it, and I hadn't prepared for it. I'd written the motion, but I hadn't prepared for the argument, and Clark just pushed me out, and I did it, and I won. So that was a really good way for him to do that.
Amy
Now you get to look forward to the day you get to pick forward with another person sometime in your career.Michael
Well, great, great stuff. Thank you so much for being here. Miles, amazing story. Do you have any advice you'd give to somebody who's 18, 19 years old and facing what you were facing? How did you pull yourself up?Miles
Well, I mean, I have a lot of clients—most of our clients who are accused of doing violent crimes or street crimes—they are 18 or 19 years old. So I think one thing I like to tell them is be patient. It's very easy to be impatient when you're young, and you just got to dig your heels in and get started. You have to start somewhere and just work towards it.Amy
That's great advice. That's great. Well, thank you for listening to the AZ Big Podcast with Michael and Amy. For the latest and greatest business, real estate, and lifestyle news, check out the all-new AZBigMedia.com. Once again, thank you to our sponsors, Burch & Cracchiolo, and thank you so much to Clark Derrick and Miles Lewallen. Guys, great stuff. Thank you so much for being here.Miles
We appreciate it.Clark
Thanks for having us.