PHOENIX — We're talking about three big things on today's Ask the Expert with 12News anchor Tram Mai:
- The case of a 10-year-old boy who was caught driving a truck on the Loop 101
- The latest developments in the Lori Vallow Daybell case
- What's to come with Trump and his arraignment in Georgia
Tram sat down with criminal defense attorney Hector Diaz of Diaz Law. The full Q&A with Diaz is below.
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Young driver
Tram Mai: A 10-year-old boy was behind the wheel on the Loop 101. At one point he was driving 70 mph, according to police. But this part is confusing, the 49-year-old father, Alvaro Alvarez, was charged but the judge didn't find any probable cause. Why?
Hector Diaz: The judge reviewed the initial paperwork submitted by law enforcement and likely had some concerns about whether there was sufficient evidence to support the recommended DUI charges, therefore apparently not finding PC on the DUI charges. This DUI issue can be reviewed by the County Prosecutor, so Alvarez is not out of legal harm just yet on the DUI.
Also, a person can be charged with DUI under Arizona law even when they are technically not driving, but rather, pursuant to the notion of what is called “actual physical control” of a vehicle. This is where a person posed a threat to the public by the exercise of present or imminent control over a vehicle while impaired. In essence, the father/passenger posed a threat to other motorists because he was the one who made the decision to allow his 10 yo son to drive him while he was intoxicated. The idea also being that the father, intoxicated, from the passenger side of the vehicle could have taken control over the vehicle at any point while on the Loop 101 and posed a serious danger to other motorists. Again, I suspect the County Attorney will take a look at the DUI charges at a later date.
The child abuse and endangerment and related to having the child placed in a position, at 10 yo, driving with an intoxicated parent.
Tram Mai: The dad was released on supervision. Now what happens?
Hector Diaz We will see a status conference, which is already scheduled, and the possibility that Alvarez could be made some sort of plea offer. However, the child abuse is a very high-level felony and the county may seek some real punishment here.
Tram Mai: If the dad is found guilty, how much time could he face?
Hector Diaz: The child abuse is the most serious offense, a higher-level felony than the other offenses. Arizona law allows these child abuse offenses to be seriously punished when they involve a minor under the age of 15. Here the minor was 10 years old, and Alvarez would face between 10-24 years if convicted at trial. As such, any plea offer in this case, if the facts are proven, will likely carry some serious confinement.
Vallow case
Tram Mai: The Lori Vallow Daybell case, her lawyers have filed a notice of appeal after she was sentenced to life in prison. Now what?
Hector Diaz: The notice of appeal was expected and is a precursor to her formal appeal of her murder conviction/life sentence. She essentially places the court and prosecutor of notice of her appeal and the issues she intends to appeal. We will have to review this appeal when filed in the near future.
Trump arraignment
Tram Mai: President Trump and his 18 co-defendants will be arraigned in Georgia. He's pleased not guilty to 13 felony charges related to overturning the state's election in 2020. Trump waived his right to appear. Does this help or hurt him?
Hector Diaz: Georgia law allows a defendant to waive his appearance for this basic hearing and Trump likely believes showing up will provide some validity to criminal charges he argues are politically motivated as part of a persecution by his political opponents. His team of lawyers will be in court and can address any material legal issues. I think it’s a wash…his nonappearance will not help or hurt him.
Tram Mai: Walk us through what will happen:
Hector Diaz: The arraignment is the formal beginning of the criminal proceedings—now the case really starts (motions (we can discuss examples), cooperation by witnesses/co-defendants, plea agreements)
TM: This can be so confusing, Trump faces a total of 91 charges across 4 criminal cases. Can you break it down as far as what we need to know?
HD: I will lay out the elements and the State’s theory in layman's terms. What does the State have to prove? What are some possible struggles for the State if this goes to trial? What is Trump’s (and his co-defendants) likely defenses to the allegations?
TM: Some arraignments may be virtual- do you think Trump will be in person or virtual?
HD: We should know if this will be in person or virtual by the end of this week. Regardless, Trump might show up just to show that he is not intimidated by the charges and for some actual facetime with the court. It never hurts to have the court believe that you are taking these charges seriously.
TM: If Trump is found guilty in any of these cases- Do you think he'll actually go to jail?
HD: I believe, and will confirm, that he must serve no less than 5 years in prison if convicted of the Georgia RICO allegations.
TM: Do you see Trump ever taking a plea agreement in any of his cases?
HD: Nope.
TM: RICO — what is this law? Isn’t this reserved for organized crime?
Typically, yes. In 2018, federal prosecutors in New York, used RICO to indict leaders of a self-help group (NXIVM-I was one of the defense attorneys on this case) that the government alleged was nothing more than a criminal enterprise – any group of people can constitute a RICO criminal enterprise if they conspire together to commit one of the many crimes specified in the RICO statute at the state and federal level.
The law does not require prosecutors to prove that defendants directly engaged in criminal activity, just that they were part of a larger organization that did. That means prosecutors would not necessarily have to prove Trump personally broke the law but knowingly coordinated with others who did The defendants can be prosecuted for the crimes of their co-conspirators, if part of the enterprise, which makes it easier to go after the heads of the enterprise). NXIVM in many ways changed how prosecutors use RICO, which is in part why we are seeing being used against a group of politicians and lawyers.)
TM: What might be an issue for the GA prosecutors in proving RICO?
HD: Convincing jurors that Trump and his 18 co-defendants, many of which are former government lawyers/government professionals, worked together towards a common criminal purpose. Trump will argue that he thought he won the election and was only making a concerted effort to further this genuine belief.
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