LAWYERS TIED TO JAIL DRUGS

Gangs Use Attorneys To Get Contraband

A handful of defense lawyers and investigators is suspected of bringing
contraband into jail in behalf of inmates associated with Arizona's most
ruthless prison gangs.

Although some of the legal aides may be unwitting tools rather than
smugglers, law enforcement officials say others cooperate with criminals
for money, romance or out of fear. Some are being sucked into scandals that
could jeopardize murder cases.

One attorney took a package containing four drugs, concealed in the binding
of a legal pad, into a Maricopa County jail. Another delivered heroin
hidden in clothing to a court defendant. And a few attorneys are suspected
of passing tips about police investigations or helping criminal syndicates
conduct terror campaigns from behind bars.

Justice experts say it is extremely rare for attorneys to compromise their
ethics or jeopardize their careers by collaborating with incarcerated
felons. No Arizona lawyer has been disciplined by the State Bar for such an
offense in recent years.

Defense attorneys add that they are obligated to provide sensitive
information to clients. The police, they say, are targeting them out of
frustration.

But police and prosecutors see growing legal links between death threats,
disrupted murder investigations, inmate stabbings and other crimes
involving the New Mexican Mafia, or New Eme, and the Aryan Brotherhood.

Early this year, Arizona investigators decided the problem was so serious
that they got permission to bug phone calls to several attorneys. However,
gang leaders learned of the wiretaps, and sealed wiretap records were
leaked and apparently circulated among inmates in the county jail.

Hidden Dope

It is hardly a revelation that narcotics and other contraband get into jail
- - even into one as notoriously tough as Sheriff Joe Arpaio's place. Just
last month, Maricopa County detention officers conducted a surprise sweep
of cells, discovering narcotics stashes and weapons.

The problem also plagues state prisons, where inmates tested positive for
drugs 2,900 times last year.

Justice officials say most of the contraband arrives via visitors and
inmates returning from work furloughs. But peace officers are increasingly
concerned about the role of lawyers and private investigators.

"It goes on," said Sgt. Dave Trombi of the Maricopa County Sheriff's
Office. Without identifying any particular lawyer, he said, "They're clever
how they do it. Just because they're attorneys doesn't mean they're reputable."

Terry Stewart, the state Department of Corrections director who was
targeted for a hit by New Eme, said gang tentacles extend from death row to
law offices.

"We found this very complex, comprehensive network of individuals who are
directed at helping death row inmates," Stewart said. "We began linking
visitors and attorneys all in this scheme."

Thanks to attorney-client privilege, legal advocates have greater access to
inmates, with less scrutiny than regular visitors. They are more likely to
have contact visits. Their calls cannot be monitored. And court papers,
hand-delivered or mailed, may not be reviewed by detention officers.

"One of the biggest methods of contraband-smuggling has been through legal
mail," noted Gary Phelps, corrections chief of staff.

Attorney papers may be X-rayed and clothing brought for court appearances
may be examined, but when contraband turns up, lawyers seldom face criminal
charges. Why?

In many instances, prosecutors close a case after concluding that
investigators failed to prove "guilty knowledge."

But some believe there is a double standard at work. Police officers point
out that motorists found with drugs in their vehicles get arrested, charged
and sent to prison with regularity; attorneys bearing dope at the jail don't.

Gang experts say that county jail officials often just throw contraband
away, not even bothering to write up reports. And, at the state prison,
smuggling seldom leads to criminal charges because the Department of
Corrections must pay all legal costs when prisoners are prosecuted.

Some authorities believe the money would be well spent. As one undercover
officer put it: "If these guys (New Eme) were done (prosecuted) for all the
contraband they're caught with, they'd never get out of prison - which is
perfect."

How Drugs Get In

On Sept. 10, 1999, defense attorney J. Justin McGuire of Phoenix went to
see an inmate in Madison Street Jail. According to a sheriff's report,
McGuire brought a "legal envelope," which caught the eye of a jail captain.

X-rays revealed something unusual in the binding of a notebook: small
packets of heroin, cocaine, methamphetamine and marijuana.

McGuire declined comment to The Republic but told investigators that he
received the envelope from his partner, who got it from a secretary, who
received it from an unknown woman outside the law office.

McGuire, who has no record of State Bar complaints, was not prosecuted.
Sheriff's investigators concluded that "no information has been developed
which would indicate that . . . J. Justin McGuire knew that there was
contraband inside of the package."

Three months later, New Eme suspect Angel Rivas Rivera was in court on
charges of armed robbery and kidnapping. Like most defendants, Rivera was
allowed street clothes rather than jailhouse stripes. When attorney James
Lagattuta delivered an outfit from Rivera's associates, detention officers
decided to check the shoes - and discovered a baggie of heroin. Lagattuta,
who also has an unblemished Bar record, was not charged. He had been
assigned to be Rivera's counsel by a judge, he said, and the incident left
him angry and mystified.

"I didn't know anything about New Eme or whatever it is," he said. " . . .
I just looked at him as another court-appointed case, a guy with a lot of
tattoos."

Justice officials emphasize that inmates sometimes dupe defense lawyers. It
would be a gross injustice, they say, to damage an attorney's career and
reputation without proof that he or she knew about the drugs. And it would
be unethical to file charges without a "reasonable likelihood of conviction."

Rivera was acquitted. Police arrested him again several days later on
narcotics and robbery charges. He was indicted with other New Eme leaders
on multiple felonies two months after that.

Murderer's Girlfriend

Richard S. Rivas III and James A. "Jaime" Sanchez are two reasons why law
officers worry about inmate relations with legal advisers.

Suspected of being New Eme members, Rivas and Sanchez were convicted in the
1995 murder of a government witness outside a West Valley bar. A bystander
was wounded but survived.

Five years later, the two men are in county jail fighting to stave off
capital punishment, their cases mired in legal conflicts, a criminal
investigation and misconduct allegations that could force a new trial.

Barbara Fuqua worked on the Rivas case as a law clerk, then passed the
State Bar and joined the Maricopa County Public Defender's Office.

Months later, Fuqua left her public job amid revelations that she sent
photos of herself in lingerie to Rivas. According to a police affidavit,
jail officials regarded Fuqua as the murderer's girlfriend. The affidavit
says she visited Rivas more than 200 times and received scores of calls
from him, even though she was not his attorney.

In 1998, Phoenix police stopped a New Eme member and discovered a letter
from Rivas in his vehicle - with, police allege, instructions to commit
murder. Hours after that letter was seized, Fuqua contacted detectives to
inquire about items taken from the suspect's car.

Police reports quote one witness who said that Fuqua had allowed Rivas to
make three-way calls from jail through her phone line.

County prosecutors obtained court permission for limited wiretaps on phone
calls from gang members to Fuqua. Police surveillance records say
detectives watched as she met with a person suspected of being a New Eme
member.

Fuqua, who did not respond to interview requests, has never been charged
with a crime. She was reprimanded by the Bar for repeatedly abusing "legal
privileges" to see Rivas in jail.

In a letter of explanation to the court, Fuqua admitted using "poor
judgment," but denied misconduct. She wrote that she became intrigued with
Rivas while working on his death-penalty case as a law clerk, adding, "I
wanted to find out who this person was that was accused of committing such
a violent crime."

The Investigators

Faced with prospective lethal injections, Rivas and Sanchez turned against
one another, each naming the other as triggerman in the homicide.

It was a typical case until their legal researchers became tangled in
accusations of ethical violations and jail smuggling.

Mary Durand, a veteran private investigator, is helping Rivas fight the
death penalty. Durand also served as a mentor to Alicia Smith, an Arizona
State University student appointed to defend Sanchez from capital punishment.

In July, according to court records, the two women got into a feud over
which defendant is the real killer. Smith claimed Durand was withholding
information, a confession by Rivas, that would exonerate Sanchez.

Durand cut off Smith's public pay from the Office of Court-Appointed
Counsel, shut down her legal phone and took her ID badge. She also demanded
Smith's case files, and circulated a letter containing personal information
about Smith, including her home address.

Smith went to the Maricopa County Attorney's Office. Among her claims:
Rivas had confessed the murders to Durand and admitted that Sanchez begged
him not to pull the trigger. Smith also accused Durand of interfering with
Sanchez's defense and of trying to use her as a "mule" for the delivery of
drugs to jail.

In a recent interview, Durand said the accusations are "absolutely and
patently false." The allegations also were denied in a court document filed
by Sanchez' lawyer.

Durand declined to comment further, as did Smith.

Juan Martinez, prosecutor in the case, took Smith before Superior Court
Judge Anna Baca, where Smith repeated her story during an off-the-record
hearing.

Rivas' lawyer, Michael Terribile, was outraged to learn that the judge and
prosecutor had met privately about his client. In an unsuccessful motion,
he argued that Martinez should be disqualified, questioning how the County
Attorney's Office could pursue criminal charges against Durand knowing that
such a move might help Sanchez win a new trial or avoid a death sentence.

Martinez's answer: "Whether or not Ms. Durand is smuggling drugs into the
jail is irrelevant to Sanchez's case."

Baca withdrew as judge in the Rivas case, citing an ethical conflict.

Al Flores resigned as Sanchez's lawyer, also citing a conflict because
Durand is a friend, colleague and former client.

Smith asked to quit as Sanchez's investigator.

The Sheriff's Office refuses to release jail intelligence reports on
Durand, Smith and others involved with New Eme, citing safety issues.

The county attorney's investigation continues, with rumors swirling through
the courthouse and key records sealed.

Death Threats

Meanwhile, the treachery has expanded beyond smuggling.

In October, Sanchez sent a letter to Judge Baca declaring that he had been
threatened, as had "other inmates who have information about Ms. Durand's
illicit activities and unethical behavior. . . . "

"These inmates have direct knowledge of Ms. Durand openly discussing (with
them) in the recent past a hit that is to be carried out against me by
members of the New Mexican Mafia," Sanchez added.

Sanchez alleged that Sherman Rutlege, another convicted killer represented
by Durand, could corroborate his story.

In a handwritten motion, Sanchez said Durand had also endangered Rutlege by
disclosing "confidential information, which should have been protected by
client/attorney privilege, to members of the New Mexican Mafia, which
placed (Rutlege's) life in danger."

No charges have been filed against Durand.

Two months ago, attorney Jerry Stahnke took over the Sanchez defense and
immediately asked that his client be removed from Madison Street Jail
because his life was in danger. Martinez, the prosecutor, opposed that
request even though a Phoenix homicide detective testified in behalf of
Sanchez.

Judge Baca rejected Stahnke's motion, but ordered jail officials to provide
extra security.

Days later, on Nov. 5, another jail inmate smashed the window of Sanchez's
cell and stabbed him through the opening with a homemade spear. Sanchez,
who was not seriously wounded, has since been transferred under orders from
Baca.

The County Attorney's Office contends that its records on jail smuggling,
as well as allegations involving Smith and Durand, are confidential due to
a continuing investigation.