It's My Courtroom, and I'll Try Like I Want To
In the drab Cochise County office building that houses his courtroom, Judge Ramon R. Alvarez is having a discussion in chambers. Courtroom decorum is nowhere in evidence.
"Bullshit!" Alvarez yells.
"No, it's not bullshit," deputy Cochise County attorney Edward Rheinheimer replies.
"I think it is," Alvarez insists.
Back and forth, the two men argue vociferously. The dispute involves the proper procedure an attorney should use when impeaching--that is, challenging the credibility of--a witness in a criminal case.
Rheinheimer, an Army criminal lawyer before joining the Cochise County Attorney's drug-enforcement unit, is certain Alvarez is mistaken about the proper procedure for impeachment.
Rheinheimer had been questioning a defendant who is charged with drug possession about the amount of alcohol he had consumed on a certain date. The deputy county attorney wants to contrast the defendant's present and past testimony about alcohol intake; the attorney and the judge are at odds over the proper procedure for doing so.
"Judge, with all due respect, and I think the world of you, I think that what you're telling me to do is the wrong way," Rheinheimer says, according to a transcript.
Alvarez says he's not insulted by the exchange--"I'm not taking offense," he tells the prosecutor--but refuses to back down, insisting that Rheinheimer follow legal rules used in civil cases as a guide for his questioning in the criminal case.
The suggestion that he should use the rules of civil procedure in a criminal matter--something akin to playing basketball under football's rules--leaves Rheinheimer dumfounded.
"Okay, if I understand it--I hope I understand it. Give me a little leeway," Rheinheimer says as the discussion ends and the men return to the courtroom.
Rheinheimer was correct when he insisted last October that criminal rules of procedure should be followed in a criminal trial. In fact, another judge subsequently upheld Rheinheimer's position. But being right is not necessarily an advantage in the Cochise County Superior Court run by Judge Ramon Alvarez.
Last summer, Ramon Alvarez was riding high. He had learned that Governor J. Fife Symington III was set to appoint him to fill a vacancy in the ranks of Cochise County's judiciary. In fact, before his July 1995 appointment as judge, Alvarez angered many in southeast Arizona's legal community by making it clear he knew he would be given the $91,000-a-year post--weeks before the appointment became public.
Once the appointment was made, the governor came in for a barrage of criticism. Many in Cochise County legal circles, even many in the governor's own Republican party, felt Alvarez was unqualified for the position.
There was another thing, a little matter of appearances. Symington and Alvarez were close friends--close enough that the governor had spent the night in Alvarez's Douglas home. And Alvarez, appointed to serve out the term of a judge who had retired, is also the father of Annette Alvarez.
Immediately after his 1991 election, Symington had named Annette Alvarez as a $60,000-per-year international trade specialist for the state. Her subsequent bureaucratic blunders cost the state a trade office in Tokyo. She was forced to resign 13 months after her appointment in the wake of press reports that Symington campaign contributions had been used to pay off nearly $10,000 in state and federal tax bills she owed.
There are also suggestions, backed by some evidence, that Annette had been more than a gubernatorial confidante. In a 1989 letter to Symington, Annette expressed her concern over their "heightened intimacy." Made public by New Times, the letter raised questions about the state of relations between Annette and the governor. Years later, it cast a shadow over the appointment of her father as a judge.
But if appearances fueled initial doubts about the appointment, it is Ramon Alvarez's judicial demeanor that has kept him in the eye of a public storm. It is a whirlwind the judge refuses to discuss despite repeated requests for interviews.
Just a year after he was named a judge, Alvarez faces questions about his penchant for slapping lawyers with unwarranted contempt-of-court charges.
Allegations of judicial misconduct are swirling, the result of two rulings Alvarez made last winter in cases involving defendants he had previously represented in private practice.
And just a year after Symington braved a political firestorm to place him on the bench, Ramon Alvarez missed a deadline for filing petitions to seek reelection as a Cochise County Superior Court judge. In a last-gasp attempt to place his name on the ballot, Alvarez has filed a lawsuit that seeks to turn the state's election law upside down. Most observers give that suit small chance of success.
The events that threaten to end Ramon Alvarez's short judicial career began in earnest last fall, about six weeks after he and Rheinheimer traded profanity while arguing over the proper procedure for questioning criminal witnesses.
It was November 1995, and Rheinheimer was prosecuting a convicted drug offender charged with violating his probation. The probationer was also charged with new offenses--possession of cocaine and possession of drug paraphernalia.
During a recess in the trial, Rheinheimer discussed some details of the case with two members of the county probation office who had been involved in the probationer's arrest. When trial resumed, Alvarez learned of the discussion--and became enraged.
Alvarez believed Rheinheimer had violated a fundamental procedural rule in effect in the case. This rule excludes witnesses from the courtroom unless they are testifying and prohibits witnesses from discussing the facts of the case or their testimony with one another.
"This case is dismissed with prejudice," Alvarez declared.
Rheinheimer was stunned. Alvarez's ruling meant that prosecutors could not even refile and retry the case.
Rheinheimer understood the "exclusion of witnesses" rule was in effect. But Rheinheimer was confused over Alvarez's ruling; one of the probation officers was Rheinheimer's "case officer," who is exempt from the exclusion rule. Rheinheimer felt that he had simply discussed the case with one of his witnesses--something any attorney is allowed to do.
"Is it the court's ruling that it is improper for counsel--" Rheinheimer said before being cut off by the judge's reply.
"It is the court's ruling that there was prosecutorial misconduct," Alvarez interjected.
Rheinheimer protested. Alvarez stood firm.
"I have nothing more to say, Mr. Rheinheimer," the judge warned.
"Hear my question first. You're saying that that violates--" Rheinheimer said.
Alvarez slapped his gavel on the bench.
"One hundred dollars. Anything further?" Alvarez declared. He had just held Rheinheimer in criminal contempt of court--an action that rarely occurs in Arizona courtrooms.
"Money is payable by five o'clock tomorrow afternoon," Alvarez added. "Stand at recess."
Rheinheimer stood at recess--but appealed Alvarez's contempt ruling the next day.
The Arizona Court of Appeals overturned the contempt ruling on January 23. The appeals court ruled that Alvarez had improperly fined Rheinheimer. The judge had failed to hold a hearing before making the contempt ruling, and had failed to state the facts underlying the contempt, the appellate justices said.
The appeals court ordered a hearing on the contempt charges and also required Alvarez to explain why Rheinheimer was being charged with contempt.
Alvarez's response came in a January 26, 1996, court entry that claimed Rheinheimer had been "disrespectful to the Court" when he argued with Alvarez over the proper way to impeach a witness. That argument had occurred six weeks before the judge held the prosecutor in contempt.
In addition, Alvarez said Rheinheimer was "rude, insolent and discourteous" when the attorney questioned why the November drug case was dismissed.
"The Court felt that this was a direct criminal contempt because of the rudeness of Counsel to the Court, especially in light of the previous case," Alvarez wrote.
Following a February 27 hearing, Cochise County Superior Court Presiding Judge Matthew W. Borowiec dismissed the contempt case.
A month later, Rheinheimer also appealed Alvarez's decision to dismiss the drug case on misconduct grounds. In his brief to the Court of Appeals, Rheinheimer said there was no violation of the exclusion-of-witness rule and asked the court to reinstate charges against the drug defendant Alvarez set free. That appeal is pending.
Even though Rheinheimer obtained a reversal of the contempt citation, the uproar stemming from Alvarez's quick gavel got the attention of the chief prosecutor in the Cochise County drug-enforcement unit. And deputy county attorney Tom Collins knows how to play hardball.
Before heading to Cochise County, Tom Collins served as Maricopa County Attorney from 1980 until 1988. In late 1985, Collins held a press conference that rocked Arizona's establishment.
Collins had launched an antipornography campaign aimed at getting raunchy videos out of the rapidly expanding video-outlet market. His efforts were vigorously opposed by the former publisher of Phoenix Newspapers, Inc., Darrow "Duke" Tully, who wrote Sunday columns that opposed Collins' crusade, citing First Amendment concerns.
But Collins had learned a secret about Tully. For years, Tully had bragged about his days as an Air Force fighter pilot gunning down enemy planes. Tully sometimes wore a full dress uniform to social occasions, replete with ribbons and medals.
Collins discovered that Tully had never even been in the Air Force, and he exposed the fraud at a morning press conference. Tully resigned later that day. Collins will be forever known as the man who shot down the Duke.
Late last January, Collins began shooting at Judge Ramon Alvarez.
Collins had been prosecuting a complex drug-smuggling case involving more than a dozen defendants, including a man named Gustavo Hurtado. After a series of delays, the case ended up before Alvarez in October 1995.
In December, Hurtado's attorney sought to have the case dismissed, claiming prosecutors had violated his client's right to a speedy trial. Alvarez agreed with the defense and threw out the charges against Hurtado on January 2.
A few weeks later, Collins says, a Cochise County sheriff's deputy contacted the drug-enforcement unit and relayed some crucial information.
"The deputy says, 'How in the hell could Ramon dismiss the charges against Hurtado when he used to represent him? That doesn't seem right to me,'" Collins says.
The deputy's information "gets relayed to me, and I say it doesn't seem right to me, either," Collins adds.
Judges are bound by the ethics rules propounded by the state Supreme Court; one of those rules requires public disclosure of any information suggesting a judge's impartiality "might reasonably be questioned." The rules also require a judge to disqualify himself from a case if he "has a personal bias or prejudice concerning a party."
Typically, judges are careful when hearing cases involving former clients. At the least, judges will publicly disclose any prior relationship with a defendant or the defendant's attorney. In most cases where there has been a prior relationship, judges will simply remove themselves from a case to avoid even the appearance of a conflict of interest.
Violations of the rule are rare, state court officials say, because it is a fundamental underpinning of the justice system that judges have no bias against or preference for the parties appearing before them.
"We don't see many cases like that because the rules are pretty clear," says Keith Stott, executive director of the Arizona Commission on Judicial Conduct. The commission investigates judicial misconduct and can impose a range of sanctions, including removal from the bench.
Collins soon discovered that, before Alvarez was appointed judge, he had acted as Hurtado's defense attorney in a 1990 property-forfeiture case. In that case, Hurtado agreed to forfeit $13,000 in drug-related cash to the Cochise County sheriff.
Alvarez personally benefited from the forfeiture. After receiving the $13,000 forfeiture, the Cochise County sheriff issued a $2,500 check to Alvarez to cover his attorney fees for representing Hurtado.
But it wasn't just that Alvarez had represented Hurtado in a drug proceeding. His representation, Collins claimed, came in a case directly related to the charges Alvarez dismissed against his former client.
"It appears the subject cash in the forfeiture is the proceeds of offenses charged in this criminal case," Collins wrote in court documents.
Collins disclosed Alvarez's apparent violation of the judicial code of conduct in a January 25 court motion seeking to have the charges reinstated against Hurtado.
Alvarez was enraged.
The next day--just moments after writing a statement explaining why deputy county attorney Rheinheimer should be held in contempt--Alvarez issued a two-page order blasting Collins and suggesting that he, too, be held in contempt.
Alvarez wrote that Collins' disclosure of the judge's connection to Hurtado was "retaliation" for the judge's decision to dismiss a case that had been pending for more than 1,300 days. The state's speedy-trial rule requires a case to be heard within 150 days, unless a defendant waives his right to a quick trial.
Despite his anger, Alvarez immediately withdrew from the case.
But another conflict was already erupting.
As Alvarez was responding to Collins' assertions of misconduct, Rheinheimer opened another front against the judge, alleging similar misconduct in a different drug case.
Luis J. Bracamonte was indicted in August 1995 on charges of possession of drug paraphernalia. His case was assigned to Alvarez in October 1995.
Alvarez issued a written order stating that Bracamonte's case would be "tried within time limits or as soon thereafter as possible." The judge also indicated he would review the case in November for further action.
In late November, Alvarez set Bracamonte's trial date for December 18. For unknown reasons, the trial was never held. There are no court records in the file indicating why the trial was delayed.
About a month later, Alvarez held another hearing on the case. Bracamonte's attorney told the judge that the speedy-trial deadline had expired three weeks earlier--on January 3. Alvarez then ordered the defense counsel to prepare a motion to dismiss the case on speedy-trial grounds.
Rheinheimer responded on January 26, objecting to the motion to dismiss and claiming the state had been ready to proceed with the trial for several months.
Rheinheimer demanded that Alvarez remove himself from the case.
Sixty-two minutes after Rheinheimer filed the statement alleging judicial misconduct, Alvarez withdrew from the case.
"This Court does not believe it has represented Mr. Bracamonte as an attorney, but may have represented other members of Mr. Bracamonte's family," Alvarez wrote.
Rheinheimer says Alvarez's explanation about representing Bracamonte's relatives doesn't square with the judge's earlier statements.
"He had told me he had represented Bracamonte," Rheinheimer said in a recent interview. "Sometime during the case, he mentioned he knew Bracamonte and even referred to him by his nickname, Pee-Wee."
Cochise County court records failed to turn up a case in which Alvarez represented Bracamonte. Rheinheimer and others contend that Alvarez may have handled other legal matters for Bracamonte that did not create a court record.
By 5 p.m. on January 26, Alvarez had removed himself from two cases in the face of charges of judicial misconduct from the Cochise County Attorney's Office. He was also pressing forward with contempt charges against one deputy county attorney, Edward Rheinheimer, and was suggesting that contempt charges could be brought against another, Tom Collins.
The only way to sort out the legal mess was to bring in a judge from outside Cochise County.
Greenlee County Superior Court Judge Allen G. Minker presided over a series of hearings in mid-March on the Hurtado and Bracamonte cases.
Although Judge Minker reached the same conclusion as Alvarez in regard to Bracamonte--that the charges against him should be dismissed on speedy-trial grounds--questions about Alvarez's handling of the case linger.
Judge Minker says he never received a good explanation as to why Alvarez failed to hold a trial after setting a trial date in December.
"In this case, the lawyers said, 'We are ready, and the time limits are running, so let's go,'" Judge Minker says. "And nothing happened."
The Hurtado case was more complicated, and Judge Minker's findings more negative to Alvarez.
First, Judge Minker ruled that Alvarez failed to notify attorneys of his prior representation of Hurtado--as required under state Supreme Court rules.
Judge Minker made the ruling after requesting, and receiving, Alvarez's explanation of whether he knew he had represented Hurtado in an earlier case. Alvarez's reply was supposed to be entered into the case file, but a review of that file earlier this month failed to turn up his statement.
The missing statement surprised Judge Minker, who related Alvarez's comments from memory.
"I think he said something to the effect that 'it dawned on me that I represented him on something, but I didn't think it had anything to do with the pending case,'" Judge Minker says.
Alvarez's earlier representation of Hurtado should have been a clear signal that he needed to inform the attorneys involved and, perhaps, remove himself from the case.
"It is fair to say this is something that should have been routinely handled," Judge Minker says.
Alvarez's failure to disclose his representation forced Judge Minker to set aside the January order dismissing the case against Hurtado. Judge Minker then held a hearing on the state's request to refile charges against Hurtado.
Again, Judge Minker came to the same conclusion as Alvarez--that the case against Hurtado, like the Bracamonte case, had dragged on far too long and violated speedy-trial rules.
Most dismissals based on speedy-trial violations stem from failures by prosecutors to prepare their cases in time. Judge Minker, however, placed much of the blame in the Hurtado case not on prosecutors, but on the court.
"It appears postponements ordered by the Court are as much 'to blame' as any delays caused by the State or defendants," Judge Minker stated in an April 10 ruling.
Judge Minker noted that the state had "petitioned the Court twice to set the matter for trial," but the court "did not ensure a trial within the required time limits."
After the dust settled, two of Alvarez's former clients avoided prosecution on drug charges because of technical legal violations--violations that Alvarez, while a judge, had been in a position to prevent.
The turmoil surrounding Alvarez's courtroom diminished significantly early this year when Alvarez left a temporary appointment to the adult civil and criminal bench and resumed his duties as Cochise County's presiding Juvenile Court judge.
No longer were former clients appearing before the judge and triggering showdowns with prosecutors.
But it didn't take long for other storm clouds to roll in. Alvarez's blunders in the courtroom, when combined with the charges of political cronyism related to his gubernatorial appointment, had attracted contenders for his position on the bench, which is up for election this fall.
In Arizona's urban counties--Maricopa and Pima--Superior Court judges do not stand for election against opponents. Voters simply vote yes or no, deciding whether to retain a judge. In the rare case when voters decide not to retain, the governor appoints a new judge.
In the state's rural counties, however, voters select from a field of candidates vying for each division in their respective county superior courts.
Two Republicans and a Democrat have filed petitions to run for the Cochise County Superior Court Division IV office held by Alvarez. One of the Republicans is Rheinheimer.
Alvarez threw a twist into the political jockeying on February 29, when he changed his party affiliation from Republican to nonpartisan. Some Republican party officials speculate that Alvarez changed his party registration because he didn't want to face two Republicans in the September primary.
Alvarez has said that he changed party affiliation because he believes Arizona's constitutional delegates wanted judges to be independent of political parties.
It's not the first time Alvarez has changed party affiliations. Alvarez says he registered as an independent in 1955 while attending the University of Arizona. He changed his affiliation to Democrat in 1958 after taking a job in the Cochise County Attorney's Office.
Alvarez says he became a Democrat only after being pressured by people affiliated with the Cochise County Attorney's Office. County records show he remained a Democrat for about 20 years, before registering once again as an independent.
He changed his affiliation again in 1990, explaining in a written statement that he joined the Republican party in order "to help my friend Fife." Alvarez, however, never became active in the Cochise County Republican party, a longtime Republican party activist says.
While Alvarez was busy switching political parties and fending off charges of judicial misconduct, his opponents were pounding the streets of Bisbee, Douglas and Sierra Vista collecting signatures to get their names on the primary ballot.
On June 27, Rheinheimer, along with Republican Charles Irwin and Democrat James Conologue, filed petitions with hundreds of signatures of registered voters.
Alvarez, however, failed to submit any petitions by the June 27 deadline.
It's uncertain why Alvarez missed the filing date.
But on July 8, he filed an unusual lawsuit in Cochise County Superior Court seeking to toss out the petitions submitted by his three opponents and prevent their names from appearing on the primary ballot.
Alvarez asked the court to place his opponents' names on the general-election ballot and to set the filing deadline to submit petitions in the general election for September 7, giving him sufficient time to collect signatures. Alvarez claims in his suit that judicial general elections are nonpartisan elections because the candidates' party affiliations do not appear on the general-election ballot.
The judge appears to be fighting an uphill battle.
The Arizona Constitution limits nonpartisan elections to a narrow range of offices, including school boards and special districts. In addition, Arizona has since statehood held primary elections for judicial offices in which candidates' party affiliations do appear on the primary ballot.
Several Cochise County officials say Alvarez's lawsuit is unlikely to succeed.
"If Judge Alvarez's position is correct, then everyone who has been elected as a judge since statehood has followed the wrong procedure," says Cochise County Attorney Alan K. Polley.
Once again, Cochise County has to bring in a judge from outside the county to handle the case. After all, Alvarez had sued the county's election director, recorder and clerk of the board of supervisors in addition to his three opponents.
Pima County Superior Court Judge Robert Donfeld last week rejected Alvarez's arguments concerning the primary election and left all three of his opponents on the September primary ballot.
Donfeld set an August 9 deadline for parties to file additional information concerning Alvarez's assertion that, because judicial elections are nonpartisan elections, he should have additional time to file petitions for the November ballot.
If Judge Donfeld rejects Alvarez's arguments, Alvarez will have only one option if he wishes to remain a judge--run for election as a write-in candidate. It would be a strange way for an incumbent judge to seek reelection. But, of course, Ramon Alvarez is no ordinary incumbent, and no ordinary judge.
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