Practice Updates

Criminal Law Cases

Eric W. Kessler (“Eric”) recently represented a young man in a capital murder trial arising out of an armed robbery, where he and two other men entered a Phoenix-area smoke shop, and the store clerk was shot to death. Our client was charged with first-degree premeditated murder, first-degree felony murder, conspiracy to commit first-degree murder and other charges. The State sought the death penalty against our client.

While our client could be subject to the death penalty under either premeditated or felony first-degree murder, it was far more likely that the jury would only vote for death if they believed our client was the person who actually killed the clerk.

As part of the charge for premeditated murder, the Government argued that our client could be found guilty as an accomplice if the jury could not be persuaded that he was the actual trigger man and therefore more likely to suffer the death penalty. Challenging the State’s theory of accomplice liability for premeditated murder became a critical goal in our mission to save our client’s life.

Eric Bryce Kessler (“Bryce”) assisted in formulating, researching and presenting our theory that an accused cannot be an accomplice to premeditated murder, at least not under the facts of this case. We believed that since the legal standard for accomplice liability does not require a finding of specific intent to commit the underlying crime (premeditated murder), finding a defendant guilty of premeditated murder as an accomplice eliminates the specific intent requirement for premeditated murder. We believed this was wrong and not consistent with constitutional protections afforded the accused. It could subject a person to the death penalty without the prosecution having to prove the element that justifies a harsher form of punishment than other forms of murder; namely, that the accused decided to kill another person, had the time to reflect on that choice and nonetheless committed to murder.

During trial preparation, we attacked the State’s key witnesses, who were the other co-defendants in the case. They had turned State’s evidence. We investigated the co-defendants’ history of prior crimes and challenged their conflicting statements given to the police in this case.

At trial, Eric attacked the key witnesses’ recollections and credibility to the point that the jury rejected much of their testimony.

At the conclusion of the State’s case, the Superior Court judge agreed with our assertion that the jury must be instructed that they could not find our client guilty of premeditated murder unless they believed, beyond a reasonable doubt, that our client was the person who pulled the trigger. The jury acquitted our client of conspiracy to commit first-degree murder and rejected premeditation. Instead, our client was found guilty of being an accomplice to robbery because he was present when the crimes occurred. This meant that our client was guilty of felony murder, and, as we had strategized during trial preparation, the jury was unwilling to even consider a death sentence for our client. During post-trial interviews, some members of the jury revealed that the deciding factor in their deliberations was the fact that they were instructed that they could not find our client guilty of premeditated murder simply because he was an accomplice.

Real Estate Development

Bryce is lead counsel on a series of appeals arising out of flawed rulings in Pima County that could affect many tax lien investors. The rulings were based on the theory that the tax lien investors did not do enough to satisfy the property owner’s Due Process rights before serving the Arizona Corporation Commission as the legal agent for service of process. The Pima County rulings unwound successful tax lien foreclosure cases against a single property owner (an LLC), even though the LLC failed to abide by its statutory duty to keep its business address, as well as that of its Statutory Agent, current with the Arizona Corporation Commission. As can happen in this area of the law, the trial judge sided with the dilatory LLC given the high value of the properties involved and afforded the LLC another opportunity to redeem the tax liens.

Other Developments

In addition to criminal defense and real estate, this office handles various civil litigation and family court matters.

Notably, we represent the family of a man who died as a result of fentanyl poisoning resulting from a prescribed fentanyl patch. Bryce is the lead attorney on that case.

Outside the courtroom, Kessler Law Group is engaged in efforts to defeat House Bill 2445. Passage of HB2445 would be catastrophic to our tax lien investor clients. Ryan Kessler has taken the lead to challenge the proposed legislation, including working with state legislators, county treasurers, and various stakeholders. Kessler Law Group remains committed to defeating any legislation that harms our clients’ rights as tax lien investors.