Comeback Law is focused on leveling the playing field in every felony case where the rights of an individual in a free society face off against the power of the state

The people have become seriously addicted to every conceivable drug under the sun, and the police arrest the tweakers and crack heads, and the poor and the homeless, and pull over nearly every single African-American man in a vehicle with a cracked windshield and/or expired registration. They stop almost every Hispanic man or teen, on a bike with or without a white light, or reflector, and they do this 7 days a week, 24 hours a day, hoping to find drugs on them, and then charge them all with felonies. Meanwhile, the drug cartel distributors barbecue steaks pool side on their oversized patios on their six-acre horse ranches in North Scottsdale. With very few busts of any major Phoenix and Valley drug dealers being announced in recent memory, one may believe there is something very fishy about the dismal lack of success (for decades) achieved by our macho crime-busters in our various police departments.

One would think that the near-total failure of law enforcement and most notably the Office of the Maricopa County Attorney, to stop the flow of heroin and meth and cocaine and crack  into our county might have caused civil and community (“stakeholder”) leaders to long ago think of executing “plan B.” But nobody’s been willing to risk their state pension by insisting on the “plan B” file. Why go to “plan B” when everyone (and their cousins and brothers-in-law) in law enforcement are cashing in big on “plan A”?

With no one standing in the way, the failed War on Drugs is mindlessly renewed year after year, arresting the poor, and the addicted, and the homeless, and the low level $20 bag of a crack dealer, who sells enough to stay high himself. Somehow the investigations never seem to climb the food chain up to the bosses. The only apparent impact of the strategy is to limit the number of rock bottom type people hanging around at the local Starbucks. But, the drugs keep pouring in, and the bosses keep buying their  mansions in cash above the asking price. The real estate brokers and banks love it as their narco-buyers don’t even bother with a walk through inspection, buying up our Valley’s most beautiful properties sight unseen.

Criminal defense lawyers advertising on billboards and buses, chase after DUI cases, and charge anyone else with serious charges $25k or more, leaving the state pensioned public defenders, and county contract lawyers to defend almost everyone arrested on serious charges. The billboard lawyers will sign up the family with payment plans, but then if a pandemic happens to strike and they lose their job, and fall behind on their payments, the lawyer will quit the case, keep the money paid to them upfront, and the county judges, ( all wining and dining themselves at the 100 Club on county time, and hopefully not driving themselves home to their unsuspecting wives) let them get away with it.

In this environment of warehouse justice, it is quite an uphill fight persuading a Maricopa County judge to suppress evidence in a felony case, (kicking out of court the evidence acquired illegally). But we are dealing with the U.S. Constitution, a supposedly sacred document that defines what being an American is all about. It’s the very document that hundreds of thousands of American heroes have died to preserve, at Bunker Hill and Valley Forge, and more recently in Vietnam, and Afghanistan, and in Iraq.

Comeback Law P.C., and its attorney, Dave Erlichman, is focused on winning his clients’ cases. Hustling up business from strangers on the internet is not the business plan. Instead, virtually all of Comeback Law’s clients are referred from other clients in jail.  The reason is clear.  Dave Erlichman is a fighter and a champion who wakes up every day, thankful to be alive, and motivated  to not only serve his  clients, but in the process, to protect the freedoms and liberties of individuals from the outrageous abuses of law enforcement in 2020. The inmates at the 4th Avenue Jail know who the lawyers are and that’s why written on the walls of the courthouse wall is: “Dave Erlichman is a bad ass lawyer. “ There’s nothing he’s more proud of.

4th Amendment to the U.S. Constitution reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be search and the person or things to be secured.

An offense is a dangerous offense if it involved the intentional or knowing infliction of serious physical injury, the discharge, use, or threatening exhibition of a deadly weapon or dangerous instrument. The state has the burden of proving beyond a reasonable doubt that the offense was dangerous. The jury’s finding must be unanimous.

In Arizona, a defendant is justified in using or threatening physical force in self-defense if the following two conditions existed:

  1. A reasonable person in the situation would have believed that physical force was immediately necessary to protect against another’s use or apparent attempted or threatened use of unlawful physical force, and
  2. The defendant used or threatened no more physical force than would have appeared necessary to a reasonable person in the situation

A defendant may use deadly physical force in self-defense only to protect against another’s use or apparent attempted or threatened use of deadly physical force.

Self- defense justifies the use or threat of physical force or deadly physical force only while the apparent danger continues, and it ends when the apparent danger ends. The force used may not be greater than reasonably necessary to defend against the apparent danger.

The use of physical force is justified if a reasonable person in the situation would have reasonably believed that immediate and physical danger appeared to be present. Actual danger is not necessary to justify the use of physical force in self-defense.

The threat or use of physical force is not justified in response to

  1. Verbal provocation only, or
  2. to resist an arrest by a peace officer, unless the force used by the peace officer exceeded that allowed by law, or
  3. If the defendant provoked the other’s use of unlawful physical force unless the defendant withdrew from the encounter or clearly communicated to the other person the defendant’s intent to withdraw, reasonably believing that the defendant could not withdraw and the other person continued or attempted to use unlawful physical force against the defendant.

The state has the burden of proving beyond a reasonable doubt that the defendant did not act with such justification. If the state fails to carry this burden then you must find the defendant not guilty of the charge.

The crime of first-degree murder requires proof that the defendant:

caused the death of another person; and, intended or knew that he or she would cause the death of another person; and, acted with premeditation.

“Premeditation” means that the defendant intended to kill another human being or knew he or she would kill another human being and that after forming that intent or knowledge, reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first-degree murder from second-degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. The time needed for reflection is not necessarily prolonged, and the space of time between the intent or knowledge to kill and the act of killing may be very short

The crime of second-degree murder requires proof that

  1. The defendant intentionally caused the death of another person, or,
  2. The defendant caused the death of another person by conduct which he knew would cause death or serious physical injury, or,
  3. Under circumstances manifesting extreme indifference to human life, the defendant recklessly engaged in conduct which created a grave risk of death and thereby caused the death of another person.

Recklessly means that a defendant is aware of and consciously disregards a substantial and unjustifiable risk that the conduct will result in the death of another. The risk should be such that disregarding it is a gross deviation from what a reasonable person would do in the situation.

The difference between first-degree murder and second degree is that second-degree murder does not require premeditation by the defendant.

If the jury believes that a defendant is guilty of either first-degree murder or second-degree murder but has a reasonable doubt as to which it was, they must find the defendant guilty of second-degree murder.
If the jury finds that the elements for second-degree murder had been proven beyond a reasonable doubt, the jury must determine whether the homicide was committed during a sudden quarrel or heat of passion resulting from adequate provocation by the victim. If the jury unanimously finds that the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim, then the jury must find the defendant guilty of manslaughter.

Arizona’s statute specifically provides that it applied to an unborn child in the womb at any stage of its development, with three exceptions to its application.

The crime of manslaughter by sudden quarrel or heat of passion requires proof that:

  1. The defendant intentionally killed another person;
  2. The defendant caused the death of another person by conduct which the defendant knew would cause death or serious physical injury;
  3. Or, under circumstances which showed extreme indifference to human life, the defendant caused the death of another person by consciously disregarding a grave risk of death. The risk must be such that disregarding it was a gross deviation from what a reasonable person in the defendant’s situation would have done, and The defendant acted upon a sudden quarrel or heat of passion; and

The sudden quarrel or heat of passion resulted from adequate provocation by the person who was killed. It is no defense that the defendant was unaware of the risk solely by reason of intoxication.

“Adequate provocation” means conduct or circumstances sufficient to deprive a reasonable person of self-control. Words alone are not an adequate provocation to justify reducing an intentional killing to manslaughter. There must not have been a “cooling off” period between the provocation and the killing. A “cooling off” period is the time it would take a reasonable person to regain self-control under the circumstances. If you determine that the defendant is guilty of either second-degree murder or manslaughter but you have a reasonable doubt as to which it was, you must find the defendant guilty of manslaughter. If the jury believes that a defendant is guilty of either second-degree murder or manslaughter but has a reasonable doubt as to which it was, they must find the defendant guilty of manslaughter.

Arizona’s statute specifically provides that it applies to an unborn child in the womb at any stage of its development, with three exceptions to its application.

Requires proof that

  1. The defendant caused the death of another person and
  2. The defendant was aware of and showed a conscious disregard of a substantial and unjustifiable risk of death. The risk must be such that disregarding it is a gross deviation from the standard of conduct of what a reasonable person would observe in the situation.
  3. It is no defense that the defendant was unaware of the risk solely because of voluntary intoxication as a result of the ingestion of alcohol or drugs.

Second-degree murder and manslaughter may both result from recklessness. The difference is that the culpable recklessness involved in manslaughter is less than the culpable recklessness involved in second-degree murder.

If the jury believes that a defendant is guilty of either second-degree murder or manslaughter but has a reasonable doubt as to which it was, they must find the defendant guilty of manslaughter.

Arizona’s statute specifically provides that it applied to an unborn child in the womb at any stage of its development, with three exceptions to its application.

The crime of negligent homicide requires proof that the defendant caused the death of another person; and failed to recognize a substantial and unjustifiable risk of causing the death of another.

The risk must be such that the failure to perceive it is a gross deviation from what a reasonable person would observe in the situation.

Negligent homicide only requires that the defendant failed to recognize the risk; (i.e.) was “unaware of the risk.”

If the jury believes that the defendant is guilty of either manslaughter or negligent homicide but have a reasonable doubt as to which it was, they must find the defendant guilty of negligent homicide.

Arizona’s statute specifically provides that it applied to an unborn child in the womb at any stage of its development, with three exceptions to its application.

  • The defendant committed an assault, which requires proof that the defendant intentionally put another person in reasonable apprehension of imminent physical injury; and
    • The assault was aggravated by at least one of the following factors:
    • The defendant caused serious physical injury to another person; or
    • The defendant used a deadly weapon or dangerous instrument; or
    • The defendant committed the assault after entering the private home of another with the intent to commit the assault; or
    • The defendant was eighteen years of age or older and the person assaulted was fifteen years of age or under; or
    • The defendant knew or had reason to know that the person assaulted was a peace officer; or
    • The defendant knew or had reason to know that the person assaulted was someone summoned and directed by a peace officer; or
    • The defendant knew or had reason to know that the person assaulted was a code enforcement officer, state park ranger, municipal park ranger, constable, firefighter, fire investigator, fire inspector, emergency medical technician, paramedic, prosecutor, public defender, judicial officer, while engaged in the execution of any official duties if the assault results from the execution of his or her official duties; or
    • The defendant knew or had reason to know that the person assaulted was someone summoned and directed by a [code enforcement officer] [state park ranger] [municipal park ranger] [constable] [firefighter] [fire investigator] [fire inspector] [emergency medical technician] [paramedic] performing any official duties; or
    • The defendant committed the assault while the person assaulted was bound or otherwise physically restrained; or
    • The defendant committed the assault while the assaulted person’s ability to resist was substantially impaired; or
    • The defendant knew or had reason to know that the victim was a health care provider or a person summoned and directed by such person performing professional duties; or
    • The assault was committed by any means of force that caused temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part, or a fracture of any body part; or
    • The defendant was in violation of an order of protection issued against him or her pursuant to A.R.S. § 13-3602 or 13-3624.

If the person who commits the assault is seriously mentally ill or is inflicted with Alzheimer’s disease or related dementia, the specific provisions relating to aggravated assaults on licensed health care providers do not apply.

When the offense is alleged to have arisen in violation of an order of protection, the assault must have occurred as defined by A.R.S. § 13-1203(A)(1) or (3).

It is not a defense to a prosecution for assaulting a peace officer or a mitigating circumstance that the peace officer was not on duty or engaged in the execution of official duties.

The crime of armed robbery requires proof of the following:

  1. The defendant took the property of another person; and
  2. The taking was from the other person’s person or immediate presence; and
  3. The taking was against the other person’s will; and
  4. The defendant used or threatened to use force against any person with the intent to force the surrender of the property or to prevent resistance to taking or keeping the property; and
  5. The defendant or an accomplice, in the course of committing the robbery, was armed with a deadly weapon, simulated deadly weapon, firearm, or used or threatened to use a deadly weapon, simulated deadly weapon, dangerous instrument.

“Force” is defined in A.R.S. § 13-1901(1) as “any physical act directed against a person as a means of gaining control of the property.”

“In the course of committing” is defined in A.R.S. § 13-1901(2) as “any of the defendant’s acts beginning with the initiation and extending through the flight from a robbery.”

“Threat” is defined as “a verbal or physical menace of imminent physical injury to a person.”

The court should instruct on the culpable mental state.

The “mere verbal threat to use a deadly weapon” where the defendant does not possess or have within his or her immediate control “a deadly weapon, dangerous instrument or simulated weapon, does not satisfy the statutory requirement for a charge of armed robbery.”

A “simulated deadly weapon” can be a hand-held under clothing giving the appearance of a handgun.).

A “simulated deadly weapon” can be a nasal inhaler used to simulate the barrel of a gun pressed to the victim’s body.

The crime of sex trafficking requires proof that the defendant knowingly transported another person with the intent to cause the other person to, or with [knowledge that the other person will engage in any prostitution or sexually-explicit performance by deception, force or coercion.

“Coercion” means abusing or threatening to abuse the law or the legal system, and/or, knowingly destroying, concealing, removing, confiscating, possessing or withholding another person’s actual or purported passport or another immigration document, government-issued identification document, government record or personal property, extortion, causing or threatening to cause financial harm to any person, facilitating or controlling another person’s access to a controlled substance.

“Force” means to cause or threaten to cause serious harm to another person, physically restraining or threatening to physically restrain another person.

“Prostitution” means engaging in or agreeing or offering to engage in sexual contact, sexual intercourse, oral sexual contact or sadomasochistic abuse under a fee arrangement with any person for money or any other valuable.