Tuesday, June 1, 2021
Supreme Court of Arizona Holds That a Single Prosecutor's Misconduct May be Imputed to Disqualify an Entire Prosecutor's Office
In its opinion today in State v. Honorable James E. Marner, 2021 WL 2197962 (Ariz. 2021), the Supreme Court of Arizona addressed a question of first impression: "whether an appearance of impropriety, arising from a prosecutor's actual misconduct, may be imputed to disqualify an entire prosecutor's office"?
Darren Irving Goldin was indicted for first-degree murder in 2010. The Attorney General sought the death penalty.
In 2011, Goldin sought to disqualify the entire Tucson branch of the Attorney General's office based on ethical violations committed by Assistant Attorney General Richard Wintory. Wintory had engaged in a series of improper phone conversations with a court-appointed confidential intermediary, whose assignment was to identify mitigation evidence for defense counsel after locating and interviewing Goldin's biological mother. Wintory did not disclose this contact to defense counsel or the court for over a week, and then disclosed only the first conversation. Wintory was removed from the case (and subsequently left the Attorney General's office), and in 2014 he consented to a ninety-day suspension from the practice of law in Arizona for violating E.R. 8.4.
After a plea deal that was subsequently revoked, Goldin renewed his motion to disqualify, and the trial court granted it, concluding, “I'm sure there's a more eloquent way of putting this, but it just looks bad.”
While the Court of Appeals reversed, the state supreme court vacated that opinion and reinstated the trial court's ruling, holding as follows:
The State argues that the Gomez factors are inapplicable here and that a defendant should be able to disqualify an entire prosecutor's office only by showing that a fair trial cannot otherwise occur. We disagree. “Justice and the law must rest upon the complete confidence of the thinking public and to do so they must avoid even the appearance of impropriety.”...In particular, “criminal prosecutions must appear fair, as well as actually be fair.”...Thus, the trial court should consider these factors whenever a defendant seeks to disqualify an entire prosecutor's office, regardless of whether the basis for the motion is a conflict of interest, misconduct, or appearance of impropriety.