Attorney's Office being challenged
The Arizona Republic
Mar. 11, 2006

County prosecutors ineligible to try cases, complaint argues

Dennis Wagner
Phoenix defense lawyers filed a flurry of court motions this week arguing that Maricopa County Attorney Andrew Thomas inadvertently disqualified his staff from prosecuting Superior Court cases when he sued the presiding judge to abolish a special DUI program for Latino and Native American defendants.

Last month, Thomas filed a civil complaint in U.S. District Court to end "race-based" Spanish-language and Indian DUI courts conducted by county judges, arguing that the programs unconstitutionally discriminate on the basis of ethnicity.

Presiding Judge Barbara Rodriguez Mundell contends that the courts are rehabilitation programs designed to work with minority defendants who need cultural or linguistic help to overcome substance abuse. They supervise convicted DUI felons who have been placed on probation after serving prison time.

In the past week, at least four defense attorneys submitted Superior Court papers demanding that county prosecutors be disqualified from criminal proceedings.

Their reasoning is that it a conflict of interest for attorneys to appear before judges when those lawyers also are in litigation against the same judges.

If such a position prevails, it effectively would preclude Thomas and his staff from conducting thousands of felony prosecutions, the primary function of his office.

Barnett Lotstein, special assistant deputy to Thomas, criticized the legal challenges as "silly," adding, "These motions are a political statement. We don't believe there is any conflict. . . . I think they're trying to muddy the waters."

The motions, on behalf of 16 defendants as of Friday, also seek disqualification of four Superior Court commissioners named in the federal suit.

Deputy public defender Michael Souccar argues in one filing that, by naming the presiding judge as a defendant in the federal case, Thomas "created a conflict of interest between all members of the Maricopa County Attorney's Office and all members of the Maricopa County Superior Court."

But Lotstein said that, based on the logic of defense lawyers, prosecutors never could file Bar Association complaints against judges or appeal court rulings without disqualifying the office from future cases.

In a court response filed Friday, Deputy County Attorney David E. Wood accuses defendants of "hyperbole" and argues that disqualification should occur only where an individual prosecutor has an actual conflict. He cites numerous legal cases to support a view that, when a prosecutor takes legal action against a judge, it does not create a conflict.

Two experts interviewed Friday concurred with the position taken by defense lawyers.

Boyd Lemon, a Los Angeles attorney and expert witness on legal ethics and malpractice, said he believes the County Attorney's Office is stuck with a "direct conflict," adding, "I've never heard anything like it."

Philip Feldman, a San Francisco lawyer and author on legal ethics, said he believes defense motions seem to be "100 percent true," though he criticized both sides.

The issue is scheduled for a hearing Monday before James Keppel, presiding criminal judge. However, Feldman noted, Keppel and all other Superior Court judges probably would face a conflict trying to rule on the matter and would have to recuse themselves.

Reach the reporter at dennis.wagner@arizonarepublic.com or (602) 444-8874.