Ted Simons: Good evening, and welcome to "Arizona Horizon," I'm Ted Simons. Joining me tonight are Mary Jo Pitzl of the "The Arizona Republic," Howard Fischer of "Capitol Media Services," and Jeremy Duda of the "Arizona Capitol Times." The racial profiling trial against the Maricopa County Sheriff's Office began yesterday. Mary Jo, let's get the basics and take it from there.
Mary Jo Pitzl: This is kicking off a two-week trial in federal district court looking at alleged civil rights invitations by Sheriff Joe. The first day was focused on a lot of technical data from a statistics professor who said, hey, my analysis showed a greater probability that brown-skinned people would be stopped by the sheriff's enforcement patrols than the average -- than anybody else. That helped to bolster the case that this was all racially motivated.
Howard Fischer: Except for the small problem, if you're going to bring down the sheriff, as he refers to himself, how do you tie that back? We had an incident in Arizona several years ago where they did statistical analyses of people stopped and ticketed by DPS; it found that you were more likely to be ticketed if you were black. Cops have a lot of discretion. Absent a smoking gun, a memo from the sheriff saying, you will go out and find brown people, even his crime suppression sweeps may not be enough to show an intentional disregard for people's rights.
Ted Simons: And yet, I think this guy found 50% more likely to be stopped between 2006 and 2009 if you were Hispanic.
Jeremy Duda: That's not going to surprise the people who have been railing against these things for years. Arpaio does these sweeps, MCSO sets up at an intersection, and look how many illegal immigrants we found in this thing.
Ted Simons: Also, I think the sheriff's office's attorney mentioned that not all stops were included here, drunk driving and some other stops. They were questioning even the data. The data is a very big factor in this particular case, showing intent.
Mary Jo Pitzl: Very much. So you will get into -- Well, I think this augers that in the coming two weeks you will see a lot of arguments about very technical, arcane points. You will have a lot of personal testimony, and does that amount to anything more than anecdotal evidence, perhaps very touching and moving. But does it establish a pattern and does it point back to a direct order from the sheriff.
Howard Fischer: Which comes down to Joe being on the stand. Those of us who grew up with Perry Mason and "Law and Order" and all that stuff are hoping for a great cross-examination and him breaking down and saying, of course I did it. Unfortunately, it doesn't come out that way, and that's part of the problem for a judge. This is only a judge hearing this case, to decide if there is enough here to conclude that there is a pattern, and that the pattern comes back to him.
Ted Simons: And the judge in his instructions to the attorneys and to those present saying he only was interested in the facts as they are now, not as they were back when this all started many, many years ago, four or five I believe. Is it four years? I think about four and a half years.
Jeremy Duda: And that could be a problem. One of the lead plaintiffs said he was in a car that -- and was pulled over and arrested I think in 2007. Some of these instances go back years and years. How do you prove it maybe happened a year ago but is not happening right now.
Ted Simons: Is that the idea, Howie? This has to be something that is systemic and continuing or what?
Howard Fischer: And that becomes the issue. If you were suing for specific damages -- in other words, I was stopped -- there was an aide to Mayor Gordon stopped on the way to Salt River Canyon, clearly an illegal resident or citizen. If you're suing for damages, that's one thing. If you're seeking injunctive relief, why were you stopped? You have to have evidence of a pattern.
Ted Simons: Indeed. And the plaintiffs are not looking for money, they are looking for them to stop this particular activity. And you mentioned this is 20 hours per side, a bench trial?
Mary Jo Pitzl: All the judge.
Ted Simons: We'll find out. And kind of a precursor of the DOJ lawsuit.
Howard Fischer: Yes. The DOJ will be looking at this evidence because they have to prove the same thing. They are going after him under federal civil rights laws. Essentially, they want a halt to the practices. Again, what do you have to show? Do you have to show whose practices? Is it just a lot of sheriff's deputies who happen to be suspicious of brown people? The joke in Scottsdale used to be, you got pulled over for driving while brown.
Ted Simons: We'll see how that works out starting Tuesday, and we'll take it from there. Jeremy, the sales tax, the initiative rejected by the secretary of state's office, big decision by the courts this week.
Jeremy Duda: The secretary of state's decision was very promptly rejected by the judge. His attitude actually was, why are we even here. That might have been an actual quote. We've got to allow for a little human error, but they collected 290,000 signatures on this thing, full of technical details and minutia. These 290,000 didn't read this thing and say, wait a minute, these two paragraphs are different, I got snookered by this.
Mary Jo Pitzl: Well, part of the argument is that nobody who signed that petition on the streets read the 19 pages of the initiative. It's a very involved measure. But what the case turned on was there was a mismatch between what was officially filed by the secretary of state and what was attached to the petitions circulated to voters. The judge said, look, what's official? It's like whatever the secretary of state says it is. The judge says, that's not good enough. People new in general this was going to raise the sales tax and the money would go to education. And they might have had some awareness this was going to go for some infrastructure projects, as well. This was heavily an education measure with some construction support thrown in.
Howard Fischer: And the problem Bennett had, first of all, the discussion does not even require you to prefile a copy. This was put in by the legislature statutorily. The judge said, okay, what's the official copy? They filed a paper copy missing some paragraphs, and they filed a disk which wasn't, they think. The judge says, which is the official copy? Your Honor, we put this in.
Ted Simons: The missing paragraphs dealt with, once you hit a certain level of revenue received, things then change?
Howard Fischer: It has to do with the distribution. This is one of the most convoluted initiatives of the first billion. Everything from a billion up to $1.5 billion is this. This is how it got distributed, that if you used the paper version, the money above $1.55 went a different way. To go to Mary Jo's point, I don't know that anybody would know what about that particular money. Somebody might not have said, I wouldn't have signed it if I had known that.
Ted Simons: At what point do they have to match? Basically, does it have to be a judge saying this is substantially the same thing? How many paragraphs have to be the same?
Jeremy Duda: The legal standard is substantial compliance. The judiciary errs on the side of letting the people vote on something. With 290,000 people, no one said, I don't want $350 million going here instead of here and here.
Mary Jo Pitzl: But who decides -- when is it important that things match? The judge said it's pretty important that the petitions that voters signed, that that was consistent. Apparently all of the secretary of state's office did random samples. All of the petitions circulated had the same language on it, so there was consistency across what voters signed.
Howard Fischer: And that's important, because the law says you have to attach the actual items. Did anybody read those 15 pages as you pointed out? No. But it was there. The judge said, who was fooled by this?
Ted Simons: Anyone going to appeal this?
Mary Jo Pitzl: The secretary of state's office said they wanted to wait until the end of the week and ponder their options. As of about an hour ago they said they are going to decide on Monday. Now you get into timing issues because the county, Maricopa County, the largest in the state, says we need to know by Tuesday whether to save room on the ballot for this ballot proposition or not. There won't be a decision by Tuesday unless Bennett's office says, we're going to drop it. One other important thing, the legal fight over this I suspect might continue. This is the best chance to stop this initiative. This had 290,000 voters supporting it. When Jan Brewer ran the penny sales tax hike in the name of education, it was very, very popular with the voters. This one has a lot of that aura of it. There will be some issue about how much money will be out there to oppose this measure.
Howard Fischer: And of course we've got another one. We're not going to have a decision by next week on the other challenge out there, which is the whole open primary thing. Yes. That issue comes down to the constitutional amendment. In its simplest form, it says everybody runs in this primary, you can designate a party, not designate the party, and the top two run off. The problem is, well, you're affecting how primaries are run, party registration, you're affecting the distribution of clean election money. That, they contend, makes it multiple issues.
Ted Simons: Jeremy, I'm hearing echos of the judge's ruling regarding the sales tax. Substantively speaking, is that that much of a difference? Substantially you are changing the primary election system and everything that falls underneath it.
Jeremy Duda: It changes 51 statutes or something. It all has to be aimed at achieving one unified goal. Whether or not you like the open primary, it's a pretty plausible argument that everything you're doing is to achieve this one system that they are trying to create.
Howard Fischer: This is going to be a crucial case for the Supreme Court. It used to be it only applied to the constitutional amendment. If you would want A, but not want B, but had to vote for B to get A, you had to knock it off the ballot. This all changed when the gay marriage issue came up. There were two issues on there. Banning gay marriage and banning civil unions. There may be people who want to ban gay marriage but don't want to ban civil unions. Changing years of case law, it's part of a single plan to achieve a goal. Which gets to Jeremy's point. Is this part of a simple single plan or is it too divisive?
Ted Simons: Who is pushing this particular challenge? And why is so much of the establishment against this particular idea?
Mary Jo Pitzl: Well, the push is coming from people who are allied with the -- Well, with the Republican Party. There's Democrats who don't like this but they are going to sit back and let the other guys use up their ammunition on it. The League of Women Voters has lent its voice to this, and the Libertarian Party, as well. The Libertarians especially have been very protective. They close their primary and don't let independents vote in it. These are folks, the Republicans and the Libertarians, like the partisan primary system, the League of Women Voters has a lot of issues with the way this is done. There are a bunch of different ways to revamp a primary election system, and they have a whole host of reasons why this isn't the best way to go.
Ted Simons: The League of Women Voters because -- do we know why?
Howard Fischer: I think some of it comes down to this is a little convoluted. If you were to go to nonpartisan elections like in cities, I think perhaps the league wouldn't have the same problems. It's a very bizarre system where you can label yourself, I'm an independent Republican, I'm a vegetarian Republican. Their belief is that is part of the complication. The other issue is the minor parties. Right now you have a situation. When you're going to do a debate for the gubernatorial candidates, you have Republicans, Democrats, Libertarians, and if there's the Green Party, you'll have them here. They will never get to the general election. The minority voice will be disenfranchised for the general.
Ted Simons: Maybe we haven't had, but there is a threat of an ethics charge filed, and another charge on campaign signs around.
Mary Jo Pitzl: Well, they are big visible postcards to the voters. Out in the East Valley last week Representative Brenda Barton apparently was driving along coming back from a doctor's appointment, and she saw some kids taking down a campaign sign for John Fillmore, running for the state Senate in the East Valley. They were attempting to put up a sign for Rich Crandall, Fillmore's opponent. She points out, it's wrong. You can't tamper with signs. She stopped and yelled at them and told them to stop what they were doing. The kids got rattled and eventually took off without putting up a Crandall sign. But not before Representative Barton got a lot of photos, which she sent out in an e-mail which was posted on the internet and then got to Mr. Crandall's attention, who called her. After a series of exchanges apparently he was pretty angry at her for what she did, exposing the kids.
Ted Simons: Angry to the point of what she says is threatening, humiliation, intimidating, the whole nine yards.
Jeremy Duda: She said he swore at her in a very angry voice. He told her, you better not run any education legislation next year, implying it'll die in his committee. It was getting kind of high stakes and very tense.
Mary Jo Pitzl: The threat that you better not run any education bills, people at the Capitol roll their eyes. This happens every day. Legislation gets put in a drawer and doesn't get heard for all kinds of petty, personal reasons that really have nothing to do with sound policy. Just because you introduce a bill doesn't mean it's going to get a hearing. Ask any democrat.
Ted Simons: Yeah. And Ms. Barton is often a champion for women's rights. She mentioned she was spoken down to as a woman, and as a woman she's not going stand for this.
Howard Fischer: It depends on who you ask regarding women’s rights. If you ask Kirsten Sinema what women's rights are, you might find something different.
Ted Simons: Jeremy, sounds like these Will Cardon ads against Flake, they are getting a little bit of traction here. John McCain and Jon Kyl both coming out, pretty strong language against the ads.
Jeremy Duda: Flake brought out his big guns with the endorsement of Kyl and endorsed him. We did this because we're offended by these ads, they are misleading and unfair. They are doing things like photo shopping it so Jeff Flake looks like he's standing behind Barack Obama. This is the ugliest race in all the congressional Senate races right now. Never assumed they were supporting Flake at this time, but it seemed like an opportune time to do this.
Ted Simons: Another concern, Howie, according to Senators Kyl and McCain, they figure Flake will probably win this primary no matter how much money Cardin puts in there. And with all this baggage and money spent fighting him off.
Howard Fischer: That's the nature of primaries.
Ted Simons: They don't have to be happy about it.
Howard Fischer: They don't, but somehow when John McCain came to Arizona and decided he wanted to run for the House, I didn't hear him worry about taking on Republican challengers. I never heard Kyl concerned about taking on Republicans. It happens. Is this particularly nasty? It's true. What happened that got Dennis Deconcini elected –
Ted Simons: Referred to by Senator Kyl.
Howard Fischer: Certainly it can happen. You can say, we're not supposed to have primaries and get nasty with each other; you might as well just scrap primaries.
Ted Simons: But does this indicate that the Republican party, and Senators Kyl and McCain – they see an opponent in Carmona.
Jeremy Duda: He has lots of money and support from the Democratic infrastructure in Washington. He has pretty much the best resume you can get as candidate and a lot of people are worried.
Howard Fischer: What Carmona also has is statements of support from McCain and Kyl. You will see those between now and November, boys and girls.
Ted Simons: We'll keep an eye out for that. Howie, the conditions for medical marijuana, you are our go-to guy on this topic, because you are a child of the sixties. Give us the conditions considered to be included for medical marijuana and why they are not going to make it.
Howard Fischer: The statute simply listed things and said presumptively you can use it. AIDS, chronic coma, chronic pain. But it said you have to fix it up every year for new conditions. Posttraumatic stress disorder, generalized anxiety disorder, migraines and depression. There were hearings and people came in with their own particular anecdotal evidence about how it's helped them. They said, okay, that's all very nice. I'm required by rule to use scientific evidence, constituents, hear reviews with double blinds so you don't have a placebo effect. He said based on that last night he turned it down. You're not going to get the studies because the National Institute of Drug Administration won't give the researchers the marijuana to study to do those kinds of studies.
Ted Simons: Wasn't there something out of the U. of A. saying there was no convincing evidence regarding—
Howard Fischer: That was the problem and that brings us back to our point. If the studies aren't there, you can't have the marijuana. If you can't have the marijuana to do the studies, you can't do the studies.
Mary Jo Pitzl: It does point out the catch-22 that Howie's described. What's the way out of it? I think Director Humboldt said there is some evidence or there might be some very controlled tests that might be allowed.
Ted Simons: I think the other concerns mentioned -- and he has mentioned this on the program -- is that sometimes it could do more harm than good because you postpone it, people are self medicating –
Howard Fischer: And that's a big concern, particularly for things like depression. If you smoke marijuana because you're depressed, now I'm happy, high, and I'm going to go get some Breyer's mint chip ice cream and everything is fine. It doesn’t deal with why you’re depressed. You can treat the symptoms. If you're just masking the symptoms, I think that's the fear.
Ted Simons: You're not going to fix it if you're masking the symptoms.
Howard Fischer: There's been anecdotal -- I talked to a psychiatrist last night. He said,I have P.T.S.D. patients. We've been through the traditional treatments, therapies, and drugs and they can't cope. Marijuana helps them. Now they have to go out on the street because they can't get this.
Ted Simons: Just a few minutes left here. Jeremy, a year ago, all sorts of folks including us, we had Senator Smith on the program who was touting a state border fence. It was going to raise some money and build a fence. A year later, what are we seeing down there?
Jeremy Duda: We are seeing nothing, a border with no fence. This got a lot of press at the time. There is a website set up where people can log on and donate money. They raised about $213,000. Now they have a total of $273,000 and only a few hundred has come in this year. There's no attention and they haven't built anything.
Howard Fischer: Jan Brewer is raising money for her SB-1070 attempt. She has her political action committee which is raising money. People in favor of securing the border have many places to give it. So you've got $270,000. If the fence costs from $3 to $5 million a mile, that's about the width of this table.
Ted Simons: But what happened? Not a single fencepost. They don't even have supplies.
Jeremy Duda: Senator Smith says, we're negotiating and a couple of companies are trying to get good prices. They said they wanted to use inmate labor. Nothing's been finalized. They wanted this big nationwide promotional campaign to raise money but they don’t have the federal non-profit status to do it. With so much up in the air, it’s hard to imagine when they’ll get a single fence post in the ground.
Mary Jo Pitzl: If they don't, there is a law that will allow them to use that money for other purposes. It's not like it'll just sit there. I can't remember if that has to be dedicated to border protection. Certainly it's not something that lawmakers can put in their pocket and walk away.
Ted Simons: What is Senator Smith saying about all this?
Jeremy Duda: He says, We're going to start very, very soon, this summer.
Howard Fischer: I've heard that.
Jeremy Duda: The first half mile or the first mile. We've heard that for a long time.
Ted Simons: All right. We only have about 30 seconds. Howie, enough time to discuss the birther probe findings.
Howard Fischer: Hey, Barack Obama was born on Krypton -- look: It's the same old stuff, the same old examination, certificates. We found a 95-year-old woman we've spoken to on the phone who has said on the phone with deputies listening in, the coding isn't correct. We heard what Sheriff Joe said, he doesn't even understand our laws. Nothing new, as we've discussed. Probably the best thing that could happen is if the journalists get together and next time Joe calls a press conference, nobody goes.
Ted Simons: We will stop it right there. Thank you, Howie. Jeremy, mary Jo, good to have you all here. Monday on "Arizona Horizon," three local economists join us for an economic update of the state and the nation. 5:30 and 10:00 here on Eight HD. That is it for now. I'm Ted Simons, thanks for joining us. You have a great weekend.