Monday, June 28, 2021

Appearances Matter

The Arizona Supreme Court affirmed the trial court's discretion to disqualify an entire prosecutor 's office

Before us is an issue of first impression for this Court: whether an appearance of impropriety, arising from a prosecutor’s actual misconduct, may be imputed to disqualify an entire prosecutor’s office. We hold that, in the interests of fairness to the defendant and public confidence in the judicial system, a trial court has broad discretion to vicariously disqualify a prosecutor’s office based on an appearance of impropriety.

The misconduct involved a first degree murder case

In 2011, [defendant] 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. 8.4.1 Subsequently, Wintory was suspended from the practice of law in Oklahoma for two years in an opinion that detailed his misconduct in Goldin’s case.


Although the trial court should have analyzed each of the Gomez factors to give the appellate courts a better indication of its reasoning, its failure to do so under these circumstances is not alone a ground for reversal, and we will defer to its judgment in determining that disqualification was appropriate. Here, where actual misconduct may have tainted the proceeding, the trial court did not abuse its discretion in disqualifying the Tucson office.

 Justice Bolick authored the opinion. (Mike Frisch)

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