Criminal Attorney Talks Charges For Gilbert Goons Case

Gilbert Arizona is a highly sought-after suburb of Phoenix where parents can find nice homes in safe surroundings. But that visage of safety was shattered when a teenager, Preston Lord, at a 2023 Halloween party was murdered by a mob of Gilbert and neighboring Queen Creek teens who call themselves the Gilbert Goons. As social media pages started lighting up with videos of the event, along with other disturbing pictures of random Fight Club-style beatings, drugs and weapons appeared. Parents began demanding police take action.

One of many issues in the community is the time that has passed since many of the crimes by the Goons have taken place. Has law enforcement and schools done enough to weed out the criminals?

In today's episode of the Modern Divorce Podcast, host Billie Tarascio steps into the world of a criminal defense attorney, Ryan McPhie of the Grand Canyon Law Group, who shares a deep dive into what teens and parents who are protecting them could be facing when it comes to the charges that are still to come. Will they be facing jail time, fines or more?

As of this recording, the first assault charges were announced as of January 10, 2024 against a few of the Goons, but the community is still clamoring for more,  and still asking when will someone be arrested for the murder of Preston Lord?

Transcript

Defense Attorney talks about the Gilbert Goons Charges

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Billie Tarascio: Hello and welcome to another edition of the Modern Divorce Podcast. I am your host, Billie Tarascio, joined by a good friend of mine here, local to the community, Ryan McPhie. And we are going to do a special episode on the Gilbert Goons. Ryan, welcome to the show. 

Ryan McPhie: Thank you. Thanks for having me. 

Billie Tarascio: I'm so happy that you're here.

Billie Tarascio: So first, before we get into all the goons, talk about what it is that you do. 

Ryan McPhie: So we are a criminal defense firm. That's all we do. 100%. We say dedicated criminal defense, both in the sense that we're dedicated to it and that is our dedicated practice. We don't do anything else. 

Billie Tarascio: Well, that's fantastic because, um, I have found myself very involved in this case and kind of outside my area of expertise, learning a lot about criminal law.

Billie Tarascio: And I've got questions, and I'm sure people do as well. So I can't wait to get your take on the situation that's happening. Now, you are from Gilbert and live in the East Valley as well, right? 

Ryan McPhie: Yeah, I live in [00:02:00] Mesa, so I've lived kind of back and forth between Gilbert and Mesa for 20 years. 

Billie Tarascio: I love it. I love it.

Billie Tarascio: Okay, so before we go into straight goons, I want to ask you about a recent sentencing of a young adult named Adam Zodro. Are you familiar with Adam's 

Ryan McPhie: case? Just very little as far as actually some stuff that I've seen you talk about as far as his sentence I believe was six months in jail. Some people have some issues with that And I assume that's kind of what we're going to talk about a little bit But I don't really know the circumstances of the assault other than it was an assault and that there was serious physical injury I don't know if it was in the juvenile system, or if it was, he was tried as an adult, so feel free to fill me in as much as you can and I'll do my best.

Billie Tarascio: All right, so the situation is that Adam Zodrove, an 18 year old, um, randomly attacked a 15 year old Kevin Durkin at an In N Out [00:03:00] in the middle of the day, um, in, I believe it was, August at Desert Ridge. So this is not Gilbert related and Gilbert really wants us to tell you that. This isn't, this didn't happen in Gilbert.

Billie Tarascio: Um, but he attacked him with brass knuckles and this 15 year old Kevin Durkin lost seven teeth. He's already had to have one surgery. It was pretty significant. So, um, he was charged with assault with a deadly weapon. And he ended up being sentenced in the adult court by Judge Kramer for six months. Now, people are, are, are fairly outraged.

Billie Tarascio: They feel like that doesn't seem fair. It doesn't seem right. It's white privilege. Tell us, is this normal? Like, is this what you would expect, or what 

Ryan McPhie: could have happened? Yeah, I mean, you got to know some more of the facts, you know, one of the things we don't know is, and maybe you do know this, the terms of the plea agreement, right?

Ryan McPhie: Sometimes the terms of the plea agreement are six months jail. We've agreed to six months jail and judge has no [00:04:00] discretion on it. Sometimes the plea is No agreements, meaning the judge can either give them probation with or probation with jail or prison. So that would be a big question to answer. What did the plea agreement look like?

Ryan McPhie: What was open to the judge? Now I will say that, you know, there's a whole lot of calculus that goes into a fair plea agreement. I'm a former deputy county attorney there at Maricopa County Attorney's Office. So I was, I was trained in that and obviously I deal with it every day. Generally when you see somebody charged with a dangerous offense Meaning they used a deadly weapon or dangerous instrument.

Ryan McPhie: It's, it's a tougher, um, case for the defense to go to trial on because if they lose, it's years in prison. It's mandatory prison, where usually the negotiation process goes, Hey, if they have no prior felony convictions, that's a big kind of part of the calculation. Many times the county attorney is willing to dismiss that allegation of [00:05:00] dangerousness in the plea agreement, meaning it gives the judge the opportunity to give probation or it gives the prosecutor the ability to say I will give probation but it's got to be at least six months jail or we agree to six months jail type of thing.

Ryan McPhie: And on a first offense, I know it sounds terrible, but on a first offense like this I would not find that to be particularly unusual. Um, in fact, Jail time, significant jail time, like six months, um, is pretty unusual on a, I wouldn't say unusual, but um, it's, it is a, a hard, um, punishment on a first offense.

Ryan McPhie: So, you know, that's, that's one thing that people have to keep in mind, right? The way the criminal justice system is set up is to say, look, there's a balance between, um, you know, punishment and trying to help people. you know, rehabilitate, right? And we say, look, if you're on first offense, we're going to throw somebody [00:06:00] in prison for five years.

Ryan McPhie: What are the chances they're going to come out and be a productive member of society? Pretty low, right? But if we say, look, we'll let you go on probation for five years, but you got to serve six months first. That's a pretty big penalty to say, okay, I better turn my life around. Um, and if they're not able to, they're on probation.

Ryan McPhie: And if they get a new offense while on probation and having a prior felony conviction, Now they're in prison for a very long time, so if you were to commit that offense while on probation, in this case, and I assume he's got a long term of probation followed, you know, following the jail, then it's, then the, the math gets very different as far as what, what they would be exposed to, so this exact same offense, you would expect three, five, seven years in prison if he's on probation for the same thing.

Ryan McPhie: All right. 

Billie Tarascio: Um, the next thing I want to talk about is questions that I'm [00:07:00] getting a lot about that have to do with the parents of the teens involved in the alleged crime. So just to give background for people who may not know what's going on. Um, there was a terrible, terrible incident that happened at a Halloween party where a 16 year old boy was beaten by a mob of other teenagers so badly that he died.

Billie Tarascio: And months later, it came out that this wasn't an isolated incident. The community didn't know about it, but there had been many kind of blitz style random attacks by a group of teens called the Gilbert Goons. And so since that came out, the community has been going crazy. There have been no arrests made in connection with the death of Preston Lord.

Billie Tarascio: Everyone kind of knows who did it, and the evidence Um, has been shared [00:08:00] online, people have been identified, parents have been identified. No arrests yet. Queen Creek Police Department submitted for charges to the Maricopa County Attorney's Office for seven different people. Um, let's just stop there. Is that a normal train of events 

Ryan McPhie: after a crime?

Ryan McPhie: Yes, I mean, basically you have, um, investigation that happens by the police, it gets submitted to the county attorney's office for major cases that are not, not misdemeanors. Those can be directly filed by the, by the officers. Anything that's a felony or a serious offense gets submitted to the county attorney's office, especially Maricopa County.

Ryan McPhie: Um, they have their attorneys review it, decide whether they think they need more evidence before it's charged. Sometimes they'll kick it back. to the police and say, look, we're missing a few things. So sometimes that can take a while. Um, or they have their own investigators at Maricopa County Attorney's Office or the AG's office, the Attorney General, [00:09:00] um, and they can do follow up investigation.

Ryan McPhie: And then they make a determination because once you charge a case, timelines start. Right? So that's, that's why, you know, really a prudent prosecutor makes sure that the evidence is lined up before that, that charging hits. And many times there's so much going on behind the scenes that you just don't know.

Ryan McPhie: So, grand juries in Arizona are mandatorily secret. In fact, if a prosecutor tells you that it's going to grand jury tomorrow, they can be charged with a felony. So, it's very secret. It could be that there's a grand jury today on that case and we wouldn't know it. Could be it was yesterday and we don't know it.

Ryan McPhie: Um, so those type of things do happen, kind of, in the process. Nothing you said about that process surprises me. Um, there's many times that We wonder, you know, even on the defense side, you know, we get involved in these cases early many times, um, when somebody says, look, I, police are talking to me, you know, and so we know there's an investigation, [00:10:00] we're in touch with, with the county attorney's office, with the detectives, and it takes a long time, even though it appears that they would really have everything to either, to make a decision either way, that we're charging the case or we're not charging the case, um, and a lot of times we're disappointed by kind of a lack of finality on both sides as far as what's happening with an investigation because, you know, I understand they want to keep it.

Ryan McPhie: You know, they don't want to taint the investigation either, but, um, that, that is not unusual, anything that you told me. 

Billie Tarascio: How long, in your experience, does it generally take after submitted, after charges are submitted for the prosecutor or the Maricopa County Attorney's Office to make a decision? 

Ryan McPhie: Okay, big issue right now.

Ryan McPhie: Uh, especially the past year, Maricopa County's Attorney's Office, I feel like they're turning it around and, and they're better now, um, since Rachel Mitchell has taken over. Um, I mean, we get aggravated DUI submittals two years after. It's, it's bananas. [00:11:00] Um, we're seeing stuff that takes a long time. So, the way that the process works, and it could be that it's been updated and they still use the same terminology, but when I was there, when it gets submitted, they call them basket cases.

Ryan McPhie: Why, why is that? Because it's literally in a folder in a basket. Waiting for a prosecutor to review it for charges. So, depends on how full that basket, how high that stack is, is how long it takes to submit. They have seven years on most felonies, um, to, to do that. Now, with that being said, they have to be reasonable, right?

Ryan McPhie: If they have no reason to say, it took me four years to charge this case, we can challenge that. You know, and say that it's unreasonable delay. Everybody has a right to some type of reasonable finality. Defendants, victims, everybody. Rachel 

Billie Tarascio: Mitchell just gave a press release today where she went over this basket case and she used that term.

Billie Tarascio: She did not explain why that it came from a basket, so I'm glad that you said that. So she [00:12:00] said that she has two experienced homicide prosecutors working on it and looking at the evidence. So, let's assume they're looking at it, and she's also said that there are, the police report itself is 1, 800 pages, there are 600 videos, there's lots and lots of evidence.

Billie Tarascio: With all that being said, What might be a reasonable time frame? 

Ryan McPhie: three to six months, um, if it didn't have public pressure, maybe a year or two. Got it. Um, but I think that it's getting probably, and it sounds like to me, it's getting kind of special movement from the bottom of the basket to the top of the basket, which is going to make some difference, right?

Ryan McPhie: So I think that just based on what we know, as far as they've given a press conference on it, that type of thing, I would anticipate it within a month to three months. But, but, again, there's just, I tell people, you know, again, from the other side, as the defendant, you can imagine how people feel when they're accused [00:13:00] of something, and they're like, Ryan, when can I expect a decision?

Ryan McPhie: And the answer is When they get to it, right? It's as long as a string, I guess we say, right? It's it just depends on on the process and how backed up they are and we do our best You know, maybe we're not as effective. We should use more media to Get a jump to the front, but we don't always want them looking at our case.

Ryan McPhie: No, I 

Billie Tarascio: bet you don't Okay, so Queen Creek Police Department brought in the FBI to assist them with the Preston Lord murder investigation What, what relationship does the FBI have now to all these other 

Ryan McPhie: agencies? Very interesting, you know, it could, we're gonna speculate, right, it could be that it's because it's a gang, right, that they are trying to, I don't know if they're trying to get it officially listed as a gang, it could be that, right, is that, um, There's gangs that are recognized, [00:14:00] um, by the government as gangs, which makes it a lot easier for them when they want to do a gang allegation, um, in a case, and we can talk about that, what that means, why they would want to do a gang allegation, but, um, and maybe it would go to this, this other case that we were talking about on, on why it was too lenient and, and maybe that won't happen if there's a gang allegation on it.

Ryan McPhie: So, um, that could be it. It could be that there's, I don't know. Otherwise, I would, you know, they have expertise on gangs, but so do local police. I mean, Mesa has a really robust gangs unit, um, you know, Gilbert, I don't know how much of a gangs unit they have, um, but the FBI does. Generally, FBI is going to come in if there's a federal issue, which I don't see in this case, as far as like going across state lines or going onto Indian reservations, which, you know, We deal with quite, quite often, but I haven't heard any connection to any type of reservations in this case.

Ryan McPhie: So I, I really don't know why they would bring on [00:15:00] the FBI other than to help with gang expertise. 

Billie Tarascio: Okay, so it's interesting you say that. Gilbert Police Department put out a statement two days ago saying, as part of the process, Gilbert Street Crimes Unit is working with the Arizona Gang and Immigration Intelligence Team Force Mission, Mesa Police Department Gang Unit, Queen Creek Police Department, Chandler Police Department, Pinal, police department to thoroughly investigate any individual self proclaiming or being affiliated by others with the term Gilbert Goons.

Billie Tarascio: They don't even mention the FBI. 

Ryan McPhie: Right. And so that gang unit that you talked about that's really kind of specific to Arizona, they're, they're very good. I mean, that's, that's. That is a great resource for them as far as being able to, 'cause again, I would anticipate, and I use, I lived in Gilbert for a long time.

Ryan McPhie: It was kind of the joke there that the police are bored, you know, they arrest you for anything because there's nothing going on. It's a very safe, you know, community to be in, which is, I think, maybe why it's so shocking to every par, partially as, as far as what's going on. But, um, [00:16:00] yeah, I, I mean, I, I would assume they would, they would really benefit from some assistance.

Ryan McPhie: Now that being said, they're not a small. police department either. I mean, Gilbert certainly has, their, their department is competent, has resources, but um, just not the size of Mesa or Phoenix or these kind of statewide agencies. Okay, well let me 

Billie Tarascio: talk to you about that because there is a lot of anger and a lot of questions because there were so many cases of assaults that were not, that were closed.

Billie Tarascio: Why, and now they're reopened and there's no explanation for why they were closed in the first place. 

Ryan McPhie: Yeah, and that's the tough part, right, is investigations happen where they're generally not going to just close them. I mean, especially Gilbert, they're very aggressive, as I said, in their prosecution.

Ryan McPhie: When something happens, they are, they are aggressive in their prosecution. Again, we talk about it because we think that they're bored there, and they, you know, there's, they're really [00:17:00] Charging very small crimes many times, so if you had an assault that happens in Gilbert and it got dismissed, it's telling me, again, speculation that the evidence wasn't there, so either, you know, they, they went to trial and the victim didn't show, which can happen in gang situations, very scary for, for witnesses to show up and, and try a case, um, you have, or any type of intimidation that could be happening, which I wouldn't doubt, um, So that could have happened.

Ryan McPhie: I would, I would have to know more, but generally it's going to be an evidentiary thing because, and the Gilbert prosecutors that they have there are generally actually former Maricopa County prosecutors. They're almost all former DC Deputy County Attorneys there that have then moved to Gilbert. So they know what they're doing.

Ryan McPhie: They're competent prosecutors. It's just sometimes you can't prove a case, and so, you know, that, that could have happened, um, and [00:18:00] then what happens is if, if more evidence, so if it gets dismissed at trial before a jury is seated or before, you know, a judge takes it, potentially they could recharge the case if the statute of limitations doesn't pass, misdemeanors, it's a year, so, um If they get more evidence that says, oh wow, now we have more information tying this to something bigger, now we could charge this maybe even in a different jurisdiction in Maricopa County, you know, Superior Court, or something like that, and they can reopen the case because you Like I said, even though they can close a case and say, Okay, we've made a decision on whether or not to charge this case, if more evidence comes forward, they can always charge it again, unless it's barred for some reason by statute of limitations, or it went and got in front of a jury and there's double jeopardy issues.

Billie Tarascio: Sure. It's, it's frustrating not to know why the cases were closed. And there's a lot of rumors and um, [00:19:00] allegations. that there was foul play, there was people paying people off, and it, it would just be really great if, if the police were able to tell the community, no, that didn't happen, here's why we closed it.

Billie Tarascio: But so far we haven't gotten that. We do know 

Ryan McPhie: Well, I was just going to say, I mean, sometimes, again, I see it from the other side, you know, a lot of times where we're, we're hoping a case gets dismissed because there's no evidence or, you know, I've got clients who maybe their family has a lot of money and, you know, they're like, hey, who can we pay extra fines to so that this thing goes away?

Ryan McPhie: Not an option. Right? Not something that I've ever seen in Arizona as far as a, uh, a jurisdiction or a prosecutor being willing to, to bend the rules or give somebody special favors for, for extra money or, or whatever. Um, we hear, I've heard about it in other states, I've heard about it, uh, I've just never seen it as far as our prosecuting agencies [00:20:00] or courts or police agencies or anything like that.

Ryan McPhie: Now, is it possible that, you know, the investigating detective is brother in law with somebody and they don't submit it. I suppose so, but, but in my experience, I just would have to see some pretty strong evidence to, and I'm, and I'm a skeptic and I'm not a big fan of police agencies, uh, you know, in a lot of ways.

Ryan McPhie: Um, And so it's not like I'm, I'm here to cover for them or anything like that, but it's just, I think that that narrative is kind of a natural thing for us to, to jump to. Again, on both sides, right? You have people who are prosecuted saying, why am I being persecuted for this when the evidence is weak? Um, and, uh, and so it's just not something I've seen.

Ryan McPhie: It's not something I would jump to without real strong evidence. 

Billie Tarascio: I feel like that what you're saying is, um, going to be very comforting to people. It really is to know that I know you and I know that you're [00:21:00] not making stuff up to cover for anybody I know that that's not the case. So when you say Gilbert really is safe that's really going to bring comfort to people and when you say there is that you haven't even heard rumors of Corruption within a police department that's also going to bring comfort to people.

Billie Tarascio: So I appreciate you saying that 

Ryan McPhie: yeah And just to caveat that, I'm not saying police agencies are perfect and that they don't have mistakes. I mean, if you look at Mesa's history, for instance, as far as You know, violence against suspects that was not justified, um, you know, investigations that were done badly, or, or, you know, kind of trying to, trying to prosecute people, um, that maybe they didn't have the evidence for.

Ryan McPhie: So it's really kind of the other side of it, right? Kind of like overzealous prosecution versus, you know, letting people off with connections. Right. 

Billie Tarascio: Um, okay. So I want to talk about accessories. [00:22:00] Um, all of the kind of, what's the right word, communal liability that can come when groups happen to be engaged in activities.

Billie Tarascio: So I think people are worried, you know, if I took a video of a fight where somebody ended up dying, what does that do for my 

Ryan McPhie: culpability? Yeah, there's so much to talk about here. So again, what we do a lot is we have people who come to us that say, look, police want to talk to me. Should I go talk to them?

Ryan McPhie: Or they went and talked to police, later on got charged and said, I had no idea I was being investigated. Um, I thought I was helping, right? And so there, there certainly are some pitfalls to be had there. Um, I think first and foremost, if police reach out to you or you have evidence of crime that you're considering providing to the police, retain an attorney.

Ryan McPhie: Do it through them. You don't do it directly, um, and it's even, and it's, it's not because I'm trying to get people hired, you know, lawyers hired, because even if I was in [00:23:00] that situation, I would hire a third party to do it, because it's kind of like they say on TV, anything you do, anything you say can and will be used against you, okay?

Ryan McPhie: Anything that your lawyer does for you can't be used. It's not in, it's not in the police report, it's not anything that can be brought up later on, so if they do try to prosecute you, you've created a buffer. Now, a lot of people say, look, I know I'm not guilty of anything. I didn't do anything. Okay. Well, then use a lawyer, especially in that, in that kind of case.

Ryan McPhie: So, so, but aside from that, um, let's start with kind of accomplice liability. So accessory, we call it accomplice liability in Arizona. You really have to have assisted or helped the crime in some way. So videoing a crime. While a lot of people might look at that video and say, why didn't you help? You really shouldn't have videoed that.

Ryan McPhie: You really should have helped, okay? Um, there is no duty to assist somebody who's a victim [00:24:00] of a crime. It's, it's a, sometimes hard to hear that, okay? But you actually have no duty to do that as a citizen. So, If you are videoing a crime happening right in front of you, there is no accomplice liability on you.

Ryan McPhie: Now, if you're encouraging it, you gotta be careful. You better listen to the sound on that video. If you're encouraging it, if you're involved, if you're helping in any way, even just, again, go get him, get him, right? Maybe that's, maybe that's accomplice. I don't know. It's, it's, it's skirting the line. So, so be careful.

Ryan McPhie: And that's why you'd want really in a very experienced attorney to review anything before it gets disclosed to police. And I know you and I have talked about this as well. Sometimes it's hard to hear that, you know, parents are not. Having their kids disclose things or, or whatever and any, any parent in that situation our job is to protect our kids And it doesn't mean we're saying that they don't have any consequences.

Ryan McPhie: It's there's a right way to do it Okay, which again you want to talk to an attorney? [00:25:00] So I think that that's kind of the first thing interesting piece of the law in Arizona is if you are found to be a accomplice In a case, no matter how minor your role, you can be considered guilty of the same offence.

Ryan McPhie: Wow. So, if you watch somebody commit a murder, and you helped them, you know, in some way, or encouraged them in some way to do it, um, even if it's the evidence you provided to the police, they can charge you with murder. That's not good. 

Billie Tarascio: That's not good. That's not good. That's not going to promote witnesses and people with knowledge to come forward and say, here's what happened.

Billie Tarascio: Especially when those people that you're talking about, you know, they're, they're kids. They're kids making terrible decisions with terrible consequences. But is that, you know, that Girlfriend that was yelling, get him. Is she a murderer? [00:26:00] You don't know. Is she an idiot? Yeah, it's just 

Ryan McPhie: hard. Yeah, very, very difficult questions in this world.

Ryan McPhie: And, and does it mean that a prosecutor wouldn't give her a better outcome than the guy who pulled the trigger or did, or did the actual murder? No, generally you're going to get a better outcome as a plea or at trial even, at sentencing. You're going to, there's going to be some argument for culpability and that type of thing, but the same offense.

Ryan McPhie: So you're still stuck within that box. And the way that Arizona sentencing works is that they do, you know, they start with the math. They say, how many prior convictions do you have? Okay, then you're in this category. And then. What were you convicted of? You know, class 6 felony, and that's your number of years that you're facing in prison.

Ryan McPhie: And the judge doesn't have an ability to go outside of it. And so, you know, if accomplice liability brings you [00:27:00] into a felony murder, judge can't help you as much as you would like. 

Billie Tarascio: So, so if you drove away the murderer from the party, are you very likely to be considered an accomplice? 

Ryan McPhie: It's going to be fact intensive, right?

Ryan McPhie: I mean, as far as, um, but you certainly are at risk for that. It certainly could be charged that way, um, and you could be considered to be an accessory. And I believe, or, uh, or they would call that, you know, accomplice liability in Arizona is kind of general, whereas General criminal defense or criminal law would look at that as accomplice after the fact, which is generally looked at a little bit differently.

Ryan McPhie: But, uh, but certainly, yes, some, you, you could be liable for some level of that crime, whatever crime they committed. 

Billie Tarascio: Okay, so let's talk about this after the fact because it's been a long time So there's been a lot of things that have happened after the fact. One allegation is that parents [00:28:00] took a child Who had bloody knuckles who is implicated in the murder Out of town to let him heal and many many comments on my videos are saying well That's obstruction of justice or you're concealing evidence You're destroying evidence.

Billie Tarascio: The parents should be charged 

Ryan McPhie: So, um, were the police looking for him and he was missing? 

Billie Tarascio: See, we don't, we don't have any arrest warrants. There are no arrest warrants. 

Ryan McPhie: There was no active case, as far as I'm concerned. There was no, you know Now, you do have to be careful of obstruction. Where we see obstruction, not really obstruction, it's destruction of evidence.

Ryan McPhie: It's people saying, Yeah, let me get rid of those bloody knuckles. Right? Let me They're gonna find their way to the bottom of a lake somewhere. Um, we're going to, um, even scrub your social media. Yeah. Stuff like that can be [00:29:00] considered destruction of evidence. And that can be a felony. Uh, by the, by the parent, but generally it would be the person who, you know, who did it.

Ryan McPhie: And again, how do you prove that the parent is the one who destroyed those things? And, and again, it would be just like any other criminal case where you have to prove who did it, uh, and how, and, um, Not necessarily how, I suppose. Um, but you have to be able to prove the elements of the crime, which can be very difficult on a destruction of evidencing, because the evidence doesn't exist anymore.

Ryan McPhie: Right, 

Billie Tarascio: right. Um, okay, so that, this question was asked to Rachel Mitchell today at the, at the press conference. Um, are you planning to charge the parents? And, she left the door open. She said, essentially, no commenting on whether parents will be charged. But definitely left that possibility open. Have you ever seen that happen?

Billie Tarascio: So, [00:30:00] 

Ryan McPhie: I don't know. I haven't seen it, uh, as far as our clients being charged. With that, I think it's, again, difficult to prove and pretty unusual, but I think there's certainly circumstances where if you can make the case, you would charge the case, and I think Rachel Mitchell is one of those prosecutors who, you know, isn't going to charge a case if she thinks that it's a case.

Ryan McPhie: It's an improper charge based on the evidence, regardless of what the public thinks, um, which can be hard, you know, as an elected official. So, I think that, um, there's been a lot of talk about holding parents responsible, for instance, for, uh, mass shootings. You know, things like that, where somebody had the opportunity to talk to their child or do whatever.

Ryan McPhie: I think that we don't really have anything in the statute books like that. It would have to fall under our current statutes, which some type of accessory

Ryan McPhie: or, as we were talking about, somebody that actually helped. Um. [00:31:00] It can't be basically a failure to act or a failure to, um, to stop somebody from doing something. I think that maybe it would go back to what you talked about where if there can be proof that the parent destroyed evidence or encouraged the child to lie or, um, You know, obstructed justice in some way that was overt and active, again, in my opinion, my experience, very difficult to prove, but people aren't, you know, expert criminals, especially people who, this is, this is kind of a unique situation where you've got kind of these families that are not traditionally seen in, in this type of, um, kind of circumstance, and, and maybe, you know, they make a bad decision, so I think that what they would have to prove is a criminal act by the parent.

Ryan McPhie: Mm hmm. Um, 

Billie Tarascio: you know Not So if even if the parents knew that their kids were involved in going out and beating up random people, that wouldn't be a crime. [00:32:00] Or could it 

Ryan McPhie: be? No. Yeah, I mean, I think that um, Again, I always kind of my brain always goes back to the whole proof part of that How do you prove that the family or the parent knew that they were doing it?

Ryan McPhie: And how do you prove that they didn't do everything they could to stop that child from doing it as a juvenile? um Now, I've actually seen cases, though, where, um, you know, the parent, at least it was alleged, the parent actually, like, encouraged the fight and said, Hey, you don't let people disrespect you like that, right?

Ryan McPhie: You don't, you don't let people do that, and here's how we took care of it in my day. You know, that could certainly be Um, you know, some accomplice liability. Um, but again, it's even, even that's kind of a stretch. I mean, it's, it's kind of hard to prove that they could foresee that, you know, their child would then take action on something like that.

Ryan McPhie: So, [00:33:00] I think you're getting into really unusual kind of Not novel, but, but not kind of what the county attorney is used to charging and what juries are great at, um, kind of parsing through because it's fairly complex. It'd be like a law school class to the jury, you know, when you're in there trying to explain how it all works.

Ryan McPhie: And just like you heard, right? Accomplice liability, somebody hears about it and it's kind of scary, you know, to think, oh, wow, this person didn't do anything, but they, you know, are being charged. So you got to be careful as a county attorney when you're charging those cases. 

Billie Tarascio: Okay, there's also lots of talk about, um, the children being on drugs, uh, pretty hardcore drugs during this incident and probably other incidents.

Billie Tarascio: Um, would you ever get to a point where parents would be charged with contributing to the delinquency of a minor? 

Ryan McPhie: If you could prove again that, that they somehow condoned [00:34:00] it or allowed it or provided it. There's actually a special statute that talks about providing drugs to a minor is very serious. Um, uh, I had a client charged with that, um, and that, and the child actually died.

Ryan McPhie: Oh. And uh, and so it actually wasn't a parent, but it was a, it was an adult in the family that had provided it to him. So it's very. It is very serious, taken very seriously, but again, a lot of times it's kind of the proof issue. But if they've got the proof that these parents were somehow providing it, and you might even be able to stretch it, I don't know, and say, hey, if they were, they knew that that's where they were spending their money, and they're giving them inordinate amounts of money, and access to money, who knows, maybe you can tie that back.

Ryan McPhie: At some level, but again, I don't think that that would then tie them to the act committed while on the drugs, [00:35:00] just providing the drugs. 

Billie Tarascio: Okay, um, One family is accused of shepherding their child off to go live on a reservation in New Mexico. Is that allowed? There's no arrest warrant. 

Ryan McPhie: Yeah, sure. There's, there's nothing.

Ryan McPhie: Again, maybe, you know, on the one side, we're, we're upset the parents aren't doing enough, and on the other side, we're, we're upset that they're trying to take them to a place where maybe they're going to learn some lessons, right? So, um, I think that once, you know, if there is an arrest warrant that comes out, that would be difficult to get them, but they could certainly do it.

Ryan McPhie: They just go through the U. S. Marshals or, There's different ways to effectuate a arrest warrant on reservations. It's not easy, but, but certainly can be done. And at that point too, if you, you know, if there's an attorney involved, they would generally coordinate the self surrender or do that in the best way [00:36:00] that's safe for everybody, for law enforcement and for the defendant.

Ryan McPhie: So, there is nothing wrong if there is no active case with release conditions saying you can't leave the state, you can leave the state. You can leave the country. There, there are no, you are still a free American citizen, um, you know, even when you're, you've been charged. There's, there's terms, there's release conditions on you once you've been charged, um, but those are subject to court change and things like that.

Ryan McPhie: So nothing wrong with what, what you just said there as far as sending them off to a reservation. 

Billie Tarascio: Got it. Okay. We have two arrests that happened today. 

Pinal County Mark Sheriff Lamb: …Involved the assault, an aggravated assault, back in November on a teenager here in our county. Now this video became very public. A lot of you were very concerned about this video and what was going on with this case.

Uh, it became very public in the media. 

Pinal County Mark Sheriff Lamb: This morning, we arrested 20 year old Jacob Pennington of Gilbert for his involvement in that crime. Now this is an ongoing investigation, so I [00:37:00] can't give you a lot of answers. There could potentially be a few more arrests stemming from this crime. But I wanted to keep you up to speed on where we're at because of how high profile this video.

Billie Tarascio: This was in Pinal County. This happened after Preston Lord's death. So this video came out in November, close to a month after Preston had been killed, showing all of these people randomly beating up this other person. At this point, no arrest. The community is going crazy. Why aren't people getting arrested?

Now, 20 year old Jacob Pennington, who has been identified in quite a few of these videos and photos, has been arrested. What do you think he's looking at? 

Ryan McPhie: Well, that's always dangerous ground, uh, to, to kind of predict at this point. Um. You know, part of it, your jumping off point is always, what are the charges, right?

Ryan McPhie: The sheriff kind of gave us a hint there that he believes it's aggravated assault, but keep in mind, he doesn't decide charges, the county attorney decides charges, so he gets to [00:38:00] submit to the county attorney and say, I think this is an aggravated assault. Is it an aggravated assault? I don't know. I didn't see anything in that video that made me think it's an aggravated assault.

Ryan McPhie: Assaults, misdemeanor assaults, can be really bad. Um, but what it comes down to is, is there something assault plus, right? Assault plus a weapon, like you talked about before. Assault plus serious physical injury, like you talked about with, you know, missing teeth, broken bones. Um, disfigurement. Okay, so, so there has to be something serious to make it an aggravated assault, um, if we want to kind of pull up how, how sentencing works, um, you know, in Arizona without, without boring people too much, but aggravated assault generally, it can be, you know, multiple different levels.

Ryan McPhie: It can be a Class 3, a Class 4, sometimes a Class 2. So, Class 2 is very serious, Class 3 is serious, Class 4 is, you know, they're all serious, they're all [00:39:00] felonies, but it, you know, can even go down to a Class 6, but really, Class 4 is kind of the more common in Class 3. So, Class 4, if it's non dangerous, meaning, it sounds silly, but non dangerous aggravated assault, but meaning that they didn't allege that it was a deadly weapon or a dangerous instrument, they could go to prison for 1 to 3.

Ryan McPhie: 75 years. Two and a half years presumptive, meaning that's where the judge starts, as far as assuming that it's correct, if they get prisoned at all. If they have no prior convictions, he's a young guy, I don't know if he has any prior convictions, um, juvenile wouldn't count. Um, then he's, he's probation eligible, which means county attorney, if it's not charged as dangerous, which changes all that, it makes it into prison mandatory.

Ryan McPhie: But It, uh, the county attorney would have to give a plea offer that is probation, maybe probation plus, plus jail, because you know, the, the, you know, prosecutor knows if you go to trial and win, [00:40:00] the judge could still give you probation. Wow. 

Billie Tarascio: Okay. And then the other arrest that happened today 22nd, Gilbert PD, um, asked for assistance.

Billie Tarascio: So on December 22nd, Gilbert Petey put out these photos and said to the public, we need your help identifying these, um, I don't know if they called them teens, individuals. We need your help identifying these individuals involved in an aggravated robbery that took place on August 18th. One of these people were identified, Christopher Fantastik, And, um, he has now been arrested, but there were a lot of people involved.

Billie Tarascio: Now, in that particular case, the father of the victim has been very outspoken. He, the victim was beaten up pretty badly by a large group of people, and [00:41:00] then, um, terrorized thereafter. So much so that dad sent his teenage son to live abroad with his mom to get away from the violence and intimidation that he was facing.

Billie Tarascio: People are angry at the police department. Do police departments ever get in trouble or ever have liability for failing to protect the 

Ryan McPhie: public? Sure. Um, but it's unusual. Yeah. And, you know, police Have a very difficult job where they have to walk this this line between Two competing interests, which is protecting the public and not violating people's rights, right?

Ryan McPhie: You know, they're really supposed to do both of those things and so, you know I actually had a case in Gilbert where [00:42:00] we had a a client who was a minority who was being terrorized terrorized Racially, just the worst things that you can see, starting from his senior year in high school till two years afterwards, he was in ASU, he, he fought back, and he got charged.

Ryan McPhie: Uh, for, for a physical crime. Um, and that was his family just up in arms, right, about how the police could just let this happen for two years and, you know, it's, it's tough because people are adept at using the criminal or the just the justice system in general of getting orders of protection, making it look like, you know, your son or your kid is the one kind of causing issues.

Ryan McPhie: But, you know, as far as the police have to work within evidence, it's, and within, um, you know, actual crimes. So there's things that [00:43:00] are harassing, and that are annoying, and that are unfair, and that are mean, that are not criminal. Okay? So, um, but, if you're talking about You know, people being harassed and beaten and, you know, if there's any evidence of that, again, my experience in Gilbert is that they are more than happy to charge that case.

Ryan McPhie: Um, now, I'm not the parent there that is going through that with my child who wasn't taken care of. So, obviously, it's a case by case basis. I think suing the police Uh, or holding them accountable in some way can certainly happen. Case in point, we have Mesa, and I talked about them a little bit earlier, who's really had a string of accusations of just beating people, okay?

Ryan McPhie: Criminal defendants. Um, for unjustified reasons, things like that. Multiple lawsuits, uh, actually some of it [00:44:00] stems from a really famous case, uh, where they shot a man who was on his hands and knees in a hotel hallway. I'm not sure if you remember that case. But the, the officer went to trial actually, he was charged with murder.

Ryan McPhie: Wow. Uh, went to trial and was acquitted. Um, and, and I think there were reasons why he was acquitted, so it's, uh, it can become very difficult, um, I guess my point is that even though he was acquitted, the U. S. Department of Justice then started an investigation on MESA PD, which is ongoing, as far as investigating them for civil rights violations, and that's generally, I've seen, really the most effective way, uh, to hold, police agencies accountable is that it's the federal government doing it.

Ryan McPhie: Now, many times this is spurred on or started by people filing civil lawsuits against them, not something that we do, [00:45:00] and I've heard it's a very difficult uphill battle to do. There's a lot of technical rules of getting it done right, but also, you know, there has to be really strong evidence that they New things and ignored those things or were negligent.

Ryan McPhie: And, and it happens. I mean, these police agencies are far from perfect. Um, and so certainly I know that there's stuff out there and it's just, I just feel for parents who are in that situation who, you know, basically have been victimized or their child has been victimized, you know, repeatedly and feel Just abandoned by the police.

Ryan McPhie: Anybody who's been a victim of a crime, it's again, you get both sides of it, right? You got people charged with a crime who didn't do anything or who are being overcharged and how oppressive that feels. Then you have the flip, the flip side of it and you have victims. If you've ever been the victim of a crime, I've had a couple of times where I was the victim of a crime and felt like police did not care, did not know, they were looking for [00:46:00] any reason to not work on this case, um, and it, it's a terrible feeling, alright, and so it's, it's a tough situation for, for everybody all the way around, but it's Um, I think there certainly are avenues to look at if you want to consult with an attorney who does sue police agencies.

Ryan McPhie: There's a couple that are really specialized in that area, um, and, uh, and then potentially they might be the ones that have connections at DOJ. Oh, 

Billie Tarascio: yes, I did have one other thing I wanted to ask you about. So one of the things Rachel Mitchell said today is when the Maricopa County Attorney's Office submits charges, they are required to present evidence that supports their case and evidence that contradicts their case.

Billie Tarascio: What does that mean? So 

Ryan McPhie: we talked about going to a grand jury, right? And that it's super secret in Arizona. Defense has no right to be there. Defense can't be there, okay? So they are held to a standard where it's a [00:47:00] strange situation where basically you've got a police officer in front of a bunch of grand jurors who do this on a repeated basis on different cases, and they're supposed to hear evidence and say, yeah, we think there's enough probable cause to move forward with charges.

Ryan McPhie: It's not that they're being found guilty. It's not a high standard like that. Um, but you can imagine that in a situation that's so one sided like that, there's a duty on the part of the prosecutor to say look, if there's exonerating evidence, you know, exculpatory evidence that shows that this person might not be guilty, it's up to them to do it because, well, you know, the honest truth is if we find out later that they didn't, then we can get the Um, the indictment thrown out.

Ryan McPhie: So, and they would have to do it all over again. And there's ways for your defense attorney to kind of get involved in that as well. We provide a letter, it's called a Triebus letter, that really lays out all of the, that mitigating or, or exonerating. exculpatory evidence that needs to be presented to that grand jury.

Ryan McPhie: And so that's a real advantage if you have somebody [00:48:00] who can present that to the prosecutors. They don't get to just decide what they think is exculpatory to present. Um, but that's what she means by that. Is it, is it a fair process? No. No, grand jury processes are not fair. 

Billie Tarascio: It's just a first check the box, 

Ryan McPhie: right?

Ryan McPhie: There's an old saying, and I know you've heard it, probably you can indict a ham sandwich, right? Whatever, whatever the prosecutor decides needs to be charged, 98 percent of the time it's going to get charged by the grand jury. 

Billie Tarascio: Ryan, thank you so much for taking your time to come on the podcast. I really appreciate it.

Billie Tarascio: I think people will really appreciate having this information, especially from somebody local who's, um, who understands all of the competing interests. There are so many competing interests. You can put yourself in the shoes of a parent whose child is a victim or in the shoes of a parent whose child was caught up in doing bad things.

Billie Tarascio: You can understand how police officers have an [00:49:00] impossible job. It's just really hard. 

Ryan McPhie: It is. It's tough and thank you. It was a lot of fun. You made it easier for me than I thought it would be, so I appreciate 

Billie Tarascio: it. Thanks, Ryan. We'll have you back again because I know we have a lot of other things to talk about, but thank you.

Billie Tarascio: Grand Canyon Law. Right? For anybody who wants to contact Ryan, anybody who's got criminal defense questions, or you might be in that accessory bucket, contact Ryan over at Grand Canyon Law. Thank you. 

Ryan McPhie: Thank you so much. Bye. 

Billie Tarascio: Bye. 

Billie Tarascio: Thanks so much for listening to the Modern Divorce podcast. Remember, anything you've heard today or anything you read online is not the replacement for actual consultation with an attorney and does not create an attorney 

Billie Tarascio: client relationship.Even if you called in and we spoke to you, you will You are anonymous and we don't have your details and you have not become a client of Modern Law. However, we would love to speak with you or you should seek out the advice of legal counsel or counseling or any other expert near you and if you have an idea for a show topic or you need to speak with an [00:50:00] attorney in Arizona, you can reach me at info, info@mymodernlaw.com.