David v. the System

On July 21, Phoenix defense attorney David Erlichman stood before Superior Court Judge Michael Yarnell and said this:

"I consider myself the last of the line here, Your Honor, defending the very true freedoms of America because I'm from Middlesex County, Massachusetts, and that is what it is all about, freedom and nonfascism. If you don't understand that, you want to find me in contempt of court for being a patriot, go right ahead."

"Are you okay, Mr. Erlichman?" Yarnell asked, as the barrister caught his breath.

"Yes. I have drug testing showing I'm not on drugs. I'm a very dedicated lawyer and I believe in America. . . . Throw me in jail. I wish you would. I would like you to. I am a martyr. I am going to be a martyr because I am right. I'm acting in the best interest of freedom and democracy, and these people are totalitarian fascists, and you're sitting up there giving me the hard time. . . . There is not another lawyer here in this whole state. And I consider that a very heavy responsibility because I am at war against the fascism. . . . That's why I say I don't think there is any doubt they are going to kill me. I mean that most seriously. If you want to call me paranoid like you did earlier, Your Honor, go ahead. I'm not paranoid. I bought a 9 millimeter Beretta because they broke into my office and stole photographs from a murder case. . . . I'd like to be in jail, to tell you the truth, because that is where the good people are. The fascists are sitting here lying to you."

By "fascists," Erlichman was referring to deputy county attorney Noel Levy and to Phoenix homicide detectives whom, he says, have conspired to frame his client for murder.

The client, Jose Francisco Mercado, sat impassively during the tirade, wearing handcuffs, leg irons and a black-and-white jail suit. The 19-year-old Puerto Rican is charged with first-degree murder and attempted murder in the February 1996 shootings of two Phoenix men. He says he's innocent.

Word of Erlichman's manic outburst--reminiscent of John Belushi's TV-commentator shtick on Saturday Night Live--rushed through the courthouse.

Since early June, the Mercado murder case has taken a back seat to the bizarre drama that has pitted Erlichman against prosecutors, judges, even his medical doctor.

Though Erlichman himself hasn't been charged with any crime, prosecutors have alleged in court that he attempted to blackmail them and Phoenix police detectives into dropping the murder charges against Mercado. Authorities also have alleged that Erlichman may suffer from drug-abuse problems--which the attorney denies.

Amid the tumult, two judges have had to consider basic constitutional issues such as a defendant's right to retain counsel of choice, and the doctor-patient "privilege."

What complicates matters is that Jose Mercado wants David Erlichman to be his attorney. Erlichman has noted in court records that Mercado's mother paid an unspecified fee to hire him.

The Sixth Amendment guarantees criminal defendants the right to assistance of counsel. In Arizona, judges generally discourage prosecutors from trying to rid themselves of defense attorneys for any reason.

But a competing interest in the law weighs that constitutional right with the justice system's need to maintain the integrity of the proceedings. The latter is difficult to quantify, though case law indicates that the disruption has to be drastic.

On July 15, Erlichman took the highly unusual step of vowing to take biweekly drug tests at his own cost, then claimed in court that he's already tested negative. Mercado has signed an affidavit in which he expressed his confidence in the attorney:

"I know Mr. Erlichman is extremely competent and I want him and no other lawyer to be my attorney. I am satisfied that those drug tests will guarantee that the court will immediately know of any drug usage by my lawyer, which I believe is a violation of his rights. He is willing to submit to this humiliation to defend me."

The state's case against Jose Mercado isn't ironclad. Mercado's cousin, whom police say drove the car in which Mercado and co-defendant Francisco Chala were passengers, changed his mind and won't testify as a prosecution witness. Investigators located bystanders to the crime, but eyewitness identification in such cases often is iffy.

That, however, usually is the stuff of trials.
It's doubtful that Erlichman ever will argue the Mercado case before a jury. He's officially been off the case since July 11, when he asked Judge Yarnell in writing to relieve him.

Erlichman changed his mind a few days later, and has been fighting in vain since then to win reassignment. He claims he resigned under "coercion and duress" after Phoenix police interviewed his physician about his alleged abuse of drugs.

In early June, according to court documents, Erlichman's physician, Dr. John Curtin, contacted Phoenix police.

"[Curtin] made a complaint that David Erlichman came to his office and demanded drugs," Noel Levy wrote. "It appeared that Mr. Erlichman had a substance abuse problem, and Dr. Curtin refused to prescribe the drugs. Rather, he suggested that Mr. Erlichman enroll in a drug program at St. Luke's. Mr. Erlichman became outraged [and] threatened the doctor . . ."

In a June 2 letter that has become part of the court file, Erlichman accused Curtin of "sexual assault, larceny by fraudulent schemes and violation of the privilege, which this patient has never and will never waive under any circumstance.

"For your fee of $200, I was requested to hug you on two occasions. I closed my eyes (trying to believe it wasn't actually happening) when you repeatedly fondled and caressed my chest, arms, legs and lower stomach area. You also asked me to cough at least four times when you held my testicles in your hand. These batteries were done in an affectionate and suggestive manner . . ."

Curtin declined to comment.
Erlichman's letter told Curtin that his treatment for an unspecified ailment with Valium pills was inadequate, and it concluded: "I see no reason to preserve your privacy with your staff . . ."

That, Levy has argued, waived Erlichman's doctor-patient privilege, which permits both parties to keep their interactions confidential.

On July 21, Erlichman responded in writing to the doctor-patient question. First, he referred to Levy's request as "the most sanctionable legal pleading ever experienced in counsel's 14-year legal career, and in his 41 years of avid television and movie watching."

Then, he commenced another diatribe:
"Having no choice but to once again respond to this legal filth, this non-bizarre and most competent of attorneys, who has beaten the state in every murder case he's been involved in since moving to this most reactionary of states, will in short order address the rest of the state's sanctionable arguments not warranted under any circumstances by existing law in the state of Arizona. . . . Insomuch as this prosecutor has pulled this one up from the darkest depths of Hades, can patient/counsel now demand what drugs the prosecutor has been smoking, or (better yet), demand to know who gave him that lovely dark blue bloody lip? . . ."

Erlichman also has demanded Levy's incarceration on grounds of prosecutorial misconduct and obstruction of justice: "Mr. Levy belongs in jail. . . . I don't know how long you should send him for, but I think he should be there for a while."

The reason, in Erlichman's view? Levy teamed with homicide detectives to hide evidence that could help Jose Mercado at trial.

An examination of the court record indicates that those claims are exaggerated. The supposed evildoings seem to be a mix-up that authorities themselves brought to the court's attention.

Erlichman's animosity toward Levy also seems misplaced: A veteran of murder cases and other major crimes, the understated Levy has a reputation among most defense attorneys for being aboveboard.

Levy has alleged in court documents that Erlichman promised several authorities, including himself, to drop all allegations of official misconduct if they dismissed the murder charges.

Levy declined the invitation.
Erlichman claims that the powers-that-be want him off the Mercado case because they fear his legal prowess. In a recent court pleading, he called himself "a proven winner of murder cases with a national reputation, [who] is now the object of a character assassination, orchestrated by a completely desperate and fascist County Attorney, effectively manipulated like a puppet by the true keepers of the reactionary flame . . . the Pullman [sic] family, owners of Phoenix Newspapers Inc. [which publishes the Arizona Republic]."

The Republic, by the way, hasn't written anything about the Mercado murder case, or about Erlichman's woes.

Judge Yarnell removed himself from the Mercado case after the July 21 hearing, saying the "unfounded personal and repeated verbal attacks on this court" made it impossible for him to continue.

Judge David Cole, who took over from Yarnell, refused to reinstate Erlichman to the Mercado case after a short hearing on July 22. (Attorney James Hart has been appointed to represent Mercado. The murder case is now before Judge Gregory Martin.)

After Cole ruled, Erlichman thrust his arms in a mock-handcuffed pose and asked the judge, "Do you want to arrest me now?"

"No, I don't want to do that."
"Is that why the guards are here today, to arrest me?"
"They are here every day, believe it or not."

On July 28, Erlichman dropped off at New Times a copy of a federal lawsuit he filed earlier that day against Maricopa County Attorney Rick Romley, the County Attorney's Office and the State of Arizona. The suit reiterates Erlichman's allegations, noting "this case . . . presents issues of significant constitutional importance not only to this litigant but to every criminal defendant and every defense attorney in this country."

Erlichman attached a handwritten note, in which he wrote:
"Given the explosive political realities, I thought you might appreciate receiving this copy of my federal action. Perhaps you are the last real reporter in this state. Unfortunately, I have a policy of not commenting to the press, based on prior bad experiences.


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