Death Sentence

A vengeful court puts an ailing old man behind bars — likely his final resting place

Life was pretty good for Phil Cisneros until his wife, Lucy, got sick.

After that, as one of his daughters teased him, he might as well as have been Job. First, there was the Alzheimer's that afflicted Lucy. Then came Cisneros' trouble with alcohol — and the law. Then his health problems, one after another.

For 40 years, Cisneros worked as a heavy-equipment operator in the copper mines outside Globe. He was a family man, a big-hearted guy who taught his five kids and a bevy of nephews fishing and woodworking. In time, he administered those same lessons to his 15 grandkids.

He doesn?t look like a menace to society, does he?
photo courtesy of Lucy Cisneros
He doesn?t look like a menace to society, does he?

Lucy's illness changed everything.

"He took care of her as best he could," recalls Phil Cisneros Jr. "It took a toll on him and the entire family." When Phil Sr. was finally forced to place Lucy in a nursing home, he took a handyman job at the home to be close to her — she would eat only if he was feeding her.

It was a difficult time, a time that would drive many men to drink. Cisneros was one of them. He'd never been a teetotaler; prosecutors say he'd been busted for DUI in 1980. But with his wife's health declining, a one-time problem became a frightening pattern. Cisneros got popped for no fewer than four DUIs from 1989 to 1992, barely getting out of jail for one before he was charged with the next.

Lucy died in 1993. Five years later, Cisneros was arrested for drunken driving one more time. He was 75.

It is, indeed, a terrible track record. But then something happened. Cisneros stopped drinking and driving — and, for that matter, stopped driving at all, according to his neighbors and family. He met another woman (coincidentally, another Lucy), fell in love, and got married again.

No one disputes that Phil Cisneros has been a model citizen for the past nine years. He hasn't had so much as a parking ticket.

And that's why his family was so shocked when their patriarch was thrown in prison this spring and sentenced to three years for, again, drunken driving.

This one, however, wasn't a new violation. It turns out he'd never cleaned up that last offense from nine years ago. And neither the prosecutor nor the judge was in the mood to give him a break.

Cisneros is 83. He suffers from prostate cancer, diabetes, pulmonary hypertension, sleep apnea, shingles, dizziness, and shortness of breath. He's had double-bypass surgery. He's extremely hard of hearing. And then there's the emotional stress he's under — his beloved wife, the second Lucy Cisneros, has recently been diagnosed with lung cancer and is undergoing chemotherapy.

To a guy in this condition, three years in prison is a death sentence.


Today, Phil Cisneros is locked up with the general prison population in Florence. No Paris Hilton-style medical reprieve for him. No assignment to a special senior citizens wing. (Did you know there is no such thing? I didn't.) In fact, for a time, Cisneros appears to have been assigned to sleep outside in a tent, in the 100-degree heat.

His lawyer, Jason Squires, tells me that in the two months he's been locked up, Cisneros has been hospitalized twice. Squires estimates that it's going to cost taxpayers close to $65,000 in medical bills for every year Cisneros manages to survive in prison.

"I've done thousands of cases, and this is the most bizarre I've ever seen," Squires says.

Here's what happened. Earlier this year, Cisneros needed new dentures. Lucy thought nothing of driving him across the Mexican border to have the work done. They're not a wealthy couple; the work is cheaper there.

But when they returned to the U.S. after the second appointment, the guards stopped Cisneros. That's when Lucy, who's been married to him for nine years this month, found out there was a warrant out for Cisneros for a felony DUI from 1998.

Cisneros had been arrested for rolling through a stop sign on his way home from the bar nine years ago. He'd already done a few months in prison for a previous drunken-driving offense. But when it came time for his new trial, he simply never showed up.

Thanks to a weird quirk in Arizona law, the trial was held anyway. Gila County tried Cisneros "in absentia," and — without him there to present a defense — the jury voted, in 18 minutes, to convict.

The conviction sat there, until Cisneros made the fateful decision to get those dentures.

Gila County Attorney Daisy Flores believes the old man made a conscious attempt to skip out and avoid punishment. But Cisneros' family is convinced that he was a confused senior citizen who didn't understand what was going on.

They claim they didn't know that he was facing more trouble, much less that he failed to show up for his trial.

And though Flores seems sincere, I have to side with the family on this one. Globe has a population of fewer than 8,000 residents. Even though Cisneros moved away a few years after his second marriage, he wasn't exactly hard to find. Several of his kids still lived in town. One daughter was living in the old family home. When Cisneros bought a house in Maricopa, both he and his wife put their names on the deed — hardly the mark of a guy who knew he was on the lam.

Even more striking is this: After the move, says Lucy Cisneros, the couple continued to drive back into Globe to see their doctor.

"Everyone knew him," says Phil Jr. "And he was sitting there eating in restaurants where the police officers hung out."

"His daughter Tammy cut the hair of half the police officers in town," Lucy adds. "None of them ever said, 'Hey, have your dad turn himself in.' Not once."

But when it was time for Phil Cisneros to be sentenced last month, Gila County Judge Robert Duber didn't see a confused old man who hadn't driven, much less driven drunk, for nine years.

He saw a repeat offender — and a fugitive.

The family assembled 65 letters from friends and relatives, begging for leniency. But Judge Duber didn't see family members who loved him. As he told them at the sentencing hearing, he saw instead 65 co-conspirators who had helped to hide him.

Duber tells me he doesn't remember saying that, but doesn't dispute it — and acknowledges that he may well have felt that way. Although he can't talk about the specifics of the case, he's unfazed by the details of the old man's illness. "The entire jail system is full of people who have very bad health problems," he says.

And Flores, the county attorney, notes that Cisneros could have faced up to 10 years. It's only because her office agreed to "forgive" one of Cisneros' prior convictions that three years' time was even within the judge's range of sentencing options.

Mandatory sentencing laws then put the lowest possibility at 2 1/4 years in prison — although Squires notes that the judge could have paroled the old man immediately. Flores also could have chosen to "forgive" the other prior, he says.

The county attorney doesn't have any regrets on that front.

"When I looked at these three prior felony DUIs, I saw a person who has not gotten a clue that they shouldn't be out driving," Flores says. "Plus, he took off for eight and a half years. I don't feel any pity for him."

I do. And it's not just because Cisneros is in poor health.

He has followed the law and stayed off the road for nine years. If the point of the law is to rehabilitate nonviolent offenders and keep the streets safe, we're already there.

Of course, here in Arizona, we want to throw the book at everyone — never mind if they actually harmed anyone or not. After all, even in his period of really dangerous behavior, Phil Cisneros avoided hitting so much as a streetlight, much less a living thing.

We're still determined to be tough.

"This is part of the reason we have the highest rate of incarceration in the West," says Caroline Isaacs, program director for the Arizona office of the American Friends Service Committee, a Quaker-based group that's advocated for sentencing reform. "We're concerned about crime, sure. But we let that concern spill over into a desire for revenge."

Isaacs can point to plenty of other states, including Texas — yes, string-'em-up Texas — that offer early release to prisoners in really bad health or in unusually tough circumstances. Not Arizona.

Phil Cisneros didn't stand a chance.

Lucy Cisneros is trying to come to terms with that. Her husband has written her plaintive letters, wondering when she's going to get him out. She hates not having a happy answer.

"I can deal with the cancer," she tells me, referencing her chemotherapy. "I just don't want to deal with it without him. You think you're together for the rest of your life, that you can handle things together, and then this happens."

I can understand why the "system" might think justice has been served in this case. The guy is a repeat offender, and we don't want people skipping out before trial, whether consciously or carelessly.

But when I think of an 83-year-old grandfather who could very well die behind bars, I can't help but think that we need a little less justice and little more mercy.

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11 comments
Fed Up
Fed Up

Slimeball Judge Orest Jejna should be investigated for untruths in the courtroom and his bias. Scottsdale judges aren't looked at enough. The entire city is a bastion of corrpution.

C.BROWN
C.BROWN

I hate to say it but the old guy is guilty (times nine). He truly doesnt deserve any pitty at all. Drunk drivers are the worst law breakers just under drug pushers. I think its horrible he waited or forgotten about it for nine years. The fact that he's an aging senior means nothing to me except he shouldve known better. This isnt like a parking ticket, and the fact that he hasnt been driving since means he WAS trying to evade law enforcement cause of the warrant. I cant stand Arpio or some of the crooked judges but sorry guys, this guy is guilty X9!

Mark Issacs
Mark Issacs

To: Presiding Judge Peter J. Cahill

RE: Article re: Phillip Cisneros (copy attached)

Subj: MADNESS!!

Date: June 27th, 2007

Dear Judge Cahill:

I am not an attorney, nor a judge. I am a simple physician, by training - although I no longer practice medicine, who manages surgical centers in New York City.

However, I went to school in Arizona and my family still lives in and around Phoenix and Scottsdale. I was looking for a home to buy for my child (who is presently attending ASU) tonight, and happened to look at the online version of New Times that will hit the newsstands tomorrow. I read the attached article about the sentencing of Mr. Cistneros, and I was SHOCKED to the very fiber of my being at the vicious sentencing of this man! At 83 years of age, and given the circumstance as outlined in the article - which I hope have been vetted for accuracy by the publisher and researched by the author - this man has been the recipient of a wretched and horrible misapplication of justice.

I am normally NOT a bleeding heart liberal. Okay, I'll admit I've voted for a couple of democrats over the years, but not many. However in this case, the Shakespearian quote about "the Quality of Mercy" comes to mind. In case you've not seen it (as I had not) in many years, I'm quoting it for you below.

The quality of mercy is not strain'd, It droppeth as the gentle rain from heaven Upon the place beneath. It is twice blest: It blesseth him that gives and him that takes. 'T is mightiest in the mightiest: it becomes The throned monarch better than his crown; His sceptre shows the force of temporal power, The attribute to awe and majesty, Wherein doth sit the dread and fear of kings; But mercy is above this sceptred sway, It is enthroned in the hearts of kings, It is an attribute to God himself; And earthly power doth then show likest God's, When mercy seasons justice. Therefore, Jew, Though justice be thy plea, consider this, That in the course of justice none of us Should see salvation: we do pray for mercy; And that same prayer doth teach us all to render The deeds of mercy.

William Shakespeare, "The Merchant of Venice", Act 4 scene 1Greatest English dramatist & poet (1564 - 1616)

The man, Phil Cistneros, who is the subject of the article appears to be a barely middle class senior with a history of tremendous strain in his life - strain of loosing a spouse a second time among others - to which he has reacted very badly in the past. The key words here are "in the past." What differentiates him from you and I? Probably education and income. Men of our ages and educational levels would go to the court, hire counsel as needed, and probably extricate ourselves from a DUI (heaven forbid!) as needed. Oh, it would be humiliating and we'd privately scream bloody hell about the legal fees. (Just as patients yell about the cost of medical care!) But in the end, the matter would be dealt with, probably by our paying a fine that paled in comparison to the legal fees. End of case.

This man, however, did not and does not have our education, nor our income level (I assume) nor the knowledge that he could and should have hired counsel to handle this matter for him. It is possible in the stress and strain of his life then (1995) he simply didn't think about this situation nor about finding a solution for it, because of his circumstances at that point in time.

Given the apparent law abiding life this man has led for the past decade, I cannot understand sentencing him to prison. Not for a day! He is OBVIOUSLY too old and too frail to undergo and survive this kind of treatment. Arizona is known for being somewhat "back-woodsy" all over America. What your fellow judge did has made Arizona a LAUGHING STOCK to the rest of the country! It's absurd to treat a human being this way at this age. I've visited Globe many times. My sister and her husband own property there. I cannot believe one of your esteemed fellow judges would deal with a man in the way that Mr. Cistneros was dealt with, nor can I believe this would be allowed to have happened - if for no other reason than the fact that it makes the entire Gila County judicial system look like vengeful hate-filled morons! I know you are judges, but you're also men and human and (hopefully) elected officials of the court, too. How could you ignore or overlook the public relations storm you're about to unleash on yourselves? What madness is sitting on the Superior Court in Gila County these days? Moreover, how does it serve our society, our state, or our government to kill this elderly man for a mistake he made in the midst of loosing a spouse and at a time when he obviously was not in complete control or possession of his right mind?

While this man lived in a small community and got caught driving under the influence of alcohol, how many times have you or I driven home from a dinner party or a cocktail party when we perhaps should not have done so under the strict interpretation of the law? Perhaps you are not guilty of such a lapse of judgement, but I certainly am and did so with far less provocation than this man

While the US Attorney General may have authored a position paper to justify White House approved Torture, I was under the impression this could only be done to enemy combatants. I did not now it was applicable to American Citizens. In spite of the AG's office best efforts, I believe that torture is still forbidden by law, if used on US citizens. What else do you call incarcerating an 83 year old man in a tent in the middle of the 100 - plus degree heat in an Arizona Desert? If that's not torture, then your Honor, I don't know what else you may call it!

Your Honor, I think you should censure in the strongest of terms the judge who sentenced this man. This is a gross miscarriage of justice, a societal horror, and probably a abuse of power granted to the bench, in my opinion. I also beseech you to reverse this unjustified and unjustifiable sentencing. Surely there must be something that will serve both the law and the circumstances of this individual, too?

I can only encourage you to reverse this miscarriage of justice if you can. I hope you will SERIOUSLY discuss with your subordinate Judge. While this must be reversed in some way or another, legally; it should never have happened in the first place, IMHO!!

Mark IssacsNew York, NY

James Von Tress
James Von Tress

If the Judge and Prosecutor of Gila County want to make an example of this 83 year old man, let them. Let them penalize the tax paying public to the tune of $65,000.00 a year to pay for his medical needs and another $45,000.00 or more that it takes to keep him in prison. Apparently Mr Cisneros is a danger to the publice and to himself that we must incarcerate to make a living example of what it means to drink and drive, then run from the consequences...... YEAH RIGHT. I will pull my tongue out my cheek now.

Tom
Tom

One former Supreme Court justice remarked that "this is not a court of justice, it is a court of law." Another quote that comes to mind is "the law is an ass." I think both of those fit this situation perfectly...

Dan
Dan

I would hope that the criminal justice system�s main focus would be reform. The point of incarcerating someone is so that they may learn from their mistakes and reenter society as a law abiding citizen. It�s unfortunate that Judge Duber�s intention is, obviously, to set some sort of precedent. The man is 83 years old and due to his illnesses, will never drive, much less drink and drive, again. What is imprisonment going to do to him? Punish an old man by making him watch his wife battle cancer from behind bars? Seems more like the wife is the one being punished. Or, better yet, let�s let a few child molesters or drug dealers roam our streets due to prison over-population. Why imprison someone who is clearly NOT a threat to society? Good to know that the State of Arizona�s tax dollars are being well spent��Globe must have a great education system to so easily allow their money to go towards this kind of crap rather than education�.

Roxie
Roxie

During the time of his drinking, thank God he injured or killed anyone. Obvioulesy he had many issues to deal with and his family should of made sure he got the conceling needed. Even the system let him down, 3 offences should have been mandatory councelling. Putting him behind bars serves NO ONE but an alto ego for the state. He should not be used as an example, that you can never flee :Sherriff Joe: and his system. Yes there should be some punishment for what he did, but probably in the form of community service.

Steve
Steve

It is indeed unfortunate what a life he has been through. Fact of the matter is, he was already through the system 3+ times when he committed the DUI that he didn�t show up to court for. Most people (having a DUI or not) know that when you get one you WILL go to court for it. I would be hard pressed to believe that he could use this same if he were to hit and kill someone while driving drunk. Plain and simple, he has been dealt some very bad cards, but he did not learn his lesson, he should be off the streets and the only way the judicial system can guarantee that is to incarcerate him. Maybe at his age he should have been in house arrest at the very least.

Terra
Terra

Yes I agree that drunk drivers have to commit to the crime... however Greggy, the system never followed up and nine YEARS later they want to lock him up with no repetition..? I have to disagree with putting him away especially with all of his ailments! I'm sorry for families that have lost there love ones do to someone's irresponsibleness. I would want that person to pay! I feel that karma has caught up to phil... so what good is it to pay for him to sit in jail and teach him what now? this time spent now, he gets it! Okay now lets move on! FREE PHIL!

Renee
Renee

I understand the crime is serious however just like the article said- jail is to have people learn from their mistakes and to rehabilitate. This man hasn't even driven in almost a decade- seems like he learned his lesson to me. Also, is worth the tax payer's dollar to incarcerate an old man who is rehabilitated?

Greg
Greg

When are we all going to grow tired of the touchy feely BS that makes everyone forget that CRIMINAL ACTS were actually commited!! Everyone has got some hard luck story to tell. We could all make excuse after excuse. Drunk drivers HAVE NO EXCUSE!!! If you drink and drive you are a selfish bastard to be sure, and there should be dire consequences for doing so. The fact that he walked around for years free without paying his debt to society is but a gift he hopefully enjoyed to the fullest. I for one am sick to death of drunk drivers killing and permanently maiming their fellow human beings and crying foul when locked up!!

 
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