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.

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Paul Rubin
Contact: Paul Rubin