The iron fist in the velvet glove: Smoothie Judge Burke crushes the C.A. and Wilenchik's 10.1 motion like it was an empty Pepsi can.
In a quick ruling on yesterday's 10.1 hearing in which County Attorney Candy Thomas' well-paid attack schnauzer Dennis "Demon Dog" Wilenchik asked for Judge Timothy Ryan to be removed from ALL of the County Attorney's cases, Judge Edward Burke has DENIED Wilenchik's motion, dealing a major, if not unexpected blow to Candy and The Wily One. Check this excerpt:
The Maricopa County Attorney’s Motion For Change of Judge For Cause in the above cases is DENIED.
Although the Maricopa County Attorney has not established bias or prejudice in Judge Ryan sufficient to cause this Court to order him to be disqualified in any of the individual cases that does not end the inquiry. The County Attorney argues that the ten matters cited above demonstrate a pattern that establishes a bias in Judge Ryan against the Maricopa County Attorney’s office and its prosecutors. The County Attorney seeks unprecedented relief: an order disqualifying Judge Ryan from all matters involving the Maricopa County Attorney’s Office, and not just from the specified cases. Such a far-reaching request is neither supported by the facts presented nor the law.
So Burke bitchslapped them both on their effort to have Ryan removed from the specific cases they attached this request to, and on their attempt to disqualify Ryan on everything coming out of the C.A.'s office. That old smoothie Burke just delivered the perfumed ice pick to the kidneys that Wilenchik and "Babyface" Thomas so richly deserved. Of course, Thomas and Mr. Mold (The Wily one made his fortune with toxic mold cases before turning to the public trough) can appeal the ruling. And Candy will likely make it an issue in his reelection effort and in his eventual run for Guv. Thing is, his opponents can use it against him, too, pointing out what an ass he is, and how dangerous his attack on the blackrobes has been.
In any case, it ain't over. It's all about Prop 100, denying bail to illegals, and exploiting the immigration issue to appeal to the basest instincts of the Zona electorate. Not that the anti-illegal wackos need any help on that front. Burke's ruling is a blow on behalf of the rule of law, not mob rule. All those interested in an independent judiciary should applaud it.
The ruling in its entirety follows. More Feathered Bastard entries on this subject are listed after this document:
The Court has conducted a hearing on the Maricopa County Attorney’s Motion under Rule 10.1 of Criminal Procedure For Change of Judge for Cause of the Honorable Timothy J. Ryan from these cases and all other proceedings involving the Maricopa County Attorney’s Office.
Dennis Wilenchik appeared as co-counsel for the State in the Perez-Ortiz matter and as counsel for Elizabeth A. Cottor in the Saenz matter.
Defendant Perez-Ortiz appeared by Robert J. McWhirter. Defendant Saenz appeared by Anca Delia Iacob and Shelly Todd Davis.
As authorized at the scheduling conference, the Maricopa County Attorney filed declarations of Deputy County Attorneys Marc Windtberg, Lisa Aubuchon, Elizabeth Cottor, and Deborah Lee and Special Assistant County Attorney Barnett S. Lotstein. Ms. Cottor and Ms. Lee also testified at the hearing. The Maricopa County Attorney also filed a Bench Memorandum which incorporated his earlier pleadings, all of which the Court has studied in detail. Having had the matter under advisement, the Court makes the following rulings.
The Maricopa County Attorney claims that Judge Timothy J. Ryan should be removed for cause in these cases and precluded from hearing any other cases involving the Maricopa County Attorney’s Office because he has demonstrated a persistent pattern of conduct that indicates bias and prejudice against the Maricopa County Attorney and multiple prosecutors in that office.
The Maricopa County Attorney points to the following actions taken by Judge Ryan as evidence of his bias and prejudice:
1. Deputy County Attorney Elizabeth Cottor. Judge Ryan’s September 20, 2007, “hyperbolic, scathing, and blistering” minute entry in CR2007-121756 as it pertains to Deputy Maricopa County Attorney Elizabeth Cottor who failed to appear before him for a resolution management conference which said in part:
“State’s counsel having failed to make any attempt to contact this Division directly or indirectly or otherwise,
IT IS ORDERED setting this matter on October 19, 2007, before Judge Ryan for an Order to Show Cause to why Elizabeth Cottor should not be held in contempt and why other sanctions should not be considered, including dismissal with prejudice of both matters based on the gross, wanton, misconduct demonstrated by State’s counsel in her absolute refusal to abide by her ethical responsibilities as an officer of the court and follow the Criminal Rules of Procedure”
The Maricopa County Attorney alleges that the minute entry was inexcusable and demonstrates a lack of simple common courtesy. (Motion, p. 11). Ms. Cottor testified that although she had been given notice of the settlement conference and did fail to appear she was offended by the minute entry.
2. The East Valley Tribune Articles. “Judge Ryan, the Associate Presiding Criminal Judge has chosen to use his elevated position of authority and the judicial forum as a means to impose his personal agenda on the Maricopa County Attorney’s Office and on individual deputy county attorneys for reasons wholly unrelated to the matters directly pending in front of him;” i.e. to intentionally ignore the judicial enforcement of Proposition 100 and its denial of bail for serious offenses committed by illegal immigrants. The State alleges that “Judge Ryan was quoted on this particular subject in the East Valley Tribune in direct opposition to the Maricopa County Attorney’s comments.” East Valley Tribune articles dated April 28, 2007 and May 17, 2007 are attached as Exhibit 1 and incorporated in the motion. The State claims that Judge Ryan’s public comments and this “public dispute” with the Maricopa County Attorney has affected his ability to be fair and impartial. (Motion, p. 2).
3. The Simpson Hearings. Mr. Windtberg’s declaration states that on May 7, 2007, Judge Ryan conducted several Simpson hearings. In six of them; i.e. Martinez, CR 2007-005096; Manzano, CR 2007-127462; Hernandez, CR 2007-127258; Arviso-Florez, CR 2007-127244; Calderon, CR 2007-127285; and Vazquez, CR 2007-101771; he refused to accept hearsay evidence concerning the defendants’ immigration status and insisted that a witness with direct knowledge of the defendants’ immigration status testify. Judge Ryan denied the State’s requests for a one-day continuance in each of the cases and released four defendants on their own recognizance and set a $2,500.00 bond on each of the other two. In the transcript of the Calderon hearing Mr. Windtberg stated on the record that “…the State is not prepared to proceed on this hearing; however, we anticipate that we may be prepared when a witness gets to the courtroom.” He also confirmed that one of the two charges was a misdemeanor which did not trigger consideration of non-bondable status. When defense counsel argued that the Court deny a continuance and set a bond, Judge Ryan instead set the case off to the end of the calendar to give the State’s witness time to appear. When the witness did not appear defense counsel again moved to deny a continuance because the prosecutor was not prepared to proceed and asked that a bond be set. Judge Ryan then denied the request for a continuance and set a bond. In the Arvizo-Flores matter Mr. Windtberg said: “Your honor, the same as the other ones. The State is unable to proceed at this time and would request a one-day continuance. Over defense counsel’s objection, Judge Ryan set that matter to the end of the calendar to allow time for the State to procure its witness. When the State was unable to produce a witness, defense counsel asked for defendant’s release on his own recognizance stating that the defendant was 40 years old, has lived in the United States for 10 years, has worked for the same painting company for six years, has three children aged 16, 12, and 6 which he is supporting and has petitions pending to become a naturalized citizen. He had no prior convictions or arrests. Judge Ryan released the defendant on his own recognizance to Pretrial Services. In Hernandez, the State announced that it could not proceed and Judge Ryan put the matter at the end of the calendar and considered it one hour and eighteen minutes later. After defense counsel noted that the State had been granted one prior continuance, Judge Ryan released the defendant to Pretrial Services. The same things essentially happened in the Vazquez, Marzano, and Martinez cases.
4. Deputy County Attorney Lisa Aubuchon’s Declaration. Ms. Aubuchon states that she had no direct personal knowledge of any hearing involving Judge Ryan but she had heard from attorneys she supervised that Judge Ryan would not accept hearsay evidence in Simpson hearings.
5. Special Assistant Maricopa County Attorney Barnett Lotstein’s Declaration. Mr. Lotstein states that although he did not attend the June, 2007 Arizona Judicial Conference he “was provided information from a reliable attendee, who wished to remain anonymous” about comments Judge Ryan allegedly made during a panel discussion. On June 25, 2007, he wrote a two-page letter to Judge Ryan setting forth what he had heard and asked for a response. Judge Ryan responded on August 2, 2007, stating that the letter was inaccurate and mischaracterized what occurred at the meeting. Judge Ryan also encouraged Mr. Lotstein to: “do the professional thing and call or meet with me before sending such a misguided missive.”
6. In State v. Tawil, CR 2006-178551, Judge Ryan refused to take notice of the fact that the trial has been delayed through no fault of the State and dismissed the charges against defendant Tawil, releasing him from custody. (Motion, p. 6).
7. In State v. Darden, CR2007-100255, counsel reported to Judge Ryan’s chambers at 11:00 a.m. to begin jury selection, but Judge Ryan employed numerous delay tactics-even coaching the defense attorneys to seek appeals-until 3:00 p.m. when he decided that a jury could not be selected by the end of the day which was nearly two hours later. Even though all parties were ready, willing, and able to proceed, Judge Ryan dismissed the charges and ordered the defendant released from custody. Judge Ryan openly counseled the defense attorney to file a motion for vindictive prosecution, despite explicit knowledge that the delay and the dismissal had not been through any fault of the State’s attorney. (Motion, p.6).
8. In State v. Francisco Javier Tovar Medrano, CR2007-113049, Judge Ryan precluded all the State’s witnesses from testifying when he learned that the prosecutor, Ms. Lee and the defense attorney did not file a joint pretrial statement as they had been ordered to do by the Judge assigned to the case, without sanctioning the defense attorney. (Motion, p.6).
9. The Serial Shooter Cases. Judge Ryan, as a special master, allegedly refused to listen to all of the audio tapes provided stating: “The Court has no intention of listening to seemingly endless hours of un-redacted evidence, with no predicate reference to which portions of the recordings the State actually intends to use in trial. “Lex non praecipit inutilia, quia inutilis labor stultus” [English translation: The law does not make judgment on useless things, because useless work is foolish,” quoting Black’s Law Dictionary 912 (7th ed.) 1990.] (Motion, p. 7).
10. Deputy County Attorney Janine Lettelier. On July 12, 2007, when Deputy County Attorney Janine Lettelier was held up in another Court and could not appear for a settlement conference in Judge Ryan’s Court at the scheduled time, without checking with his Judicial Assistant and without any complaint from defense attorney, Judge Ryan immediately asked his bailiff to set an Order to Show Cause Hearing against Ms. Lettelier. (Motion, p. 7). No declaration of Ms. Lettelier was filed.
During a scheduling conference this Court denied the Maricopa County Attorney’s request to undertake discovery on the motion, continue the matter for two to three weeks and conduct a three day evidentiary hearing. This Court’s view is that a litigant who believes he has grounds to compel a change of judge for cause under Rule 10.1 of Criminal Procedure must file his motion within ten days and should have it heard with dispatch. Because a judge against whom such a motion has been filed may not act on the case until it is ruled on, taking the time to conduct discovery would tie the Court’s hands needlessly. Permission to even question a judge regarding possible bias or prejudice must be granted sparingly and only in the presence of specific allegations, not mere speculation, suspicion, apprehension or imagination. State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999). There is no time or place in this proceeding for a fishing expedition. The right to voir dire a trial judge concerning possible bias or prejudice is not encompassed within constitutional right to fair trial before an impartial judge. State v. Rossi, 154 Ariz. 245, 741 P.2d 1223 (1987).
The Maricopa County Attorney filed his Motion Requesting Voluntary Recusal on October 2, 2007. The Motion requested “expedited oral argument before the Elizabeth Cottor hearing, which is scheduled for October 19, 2007, at 1:30 p.m.” On October 4, 2007, the Maricopa County Attorney filed a Motion For Change Of Judge For Cause. The motion was assigned to the Hon. Gary Donahoe. The Maricopa County Attorney filed a Notice of Change of Judge directed at Judge Donahoe and the matter was assigned to this Division. A scheduling conference was held on October 15, 2007, at which time this hearing was set. As originally requested by the Maricopa County Attorney, this hearing took place two court days before the scheduled Cottor hearing. The County Attorney complains in its Bench Memorandum that it was given only one day to prepare and had it had more time it could have presented a full range of allegations against Judge Ryan. The Maricopa County Attorney has had 15 calendar days to prepare for the hearing which the Court finds to have been sufficient given that five of the allegations concern hearings that occurred nearly five months ago; the alleged newspaper exchange happened nearly six months ago; and the matter about which Mr. Lotstein complains happened nearly four months ago.
There is an affirmative obligation on the part of every judge not only to be impartial, but to appear impartial. Matter of Haddad, 128 Ariz. 490, 627 P.2d 221 (1981). All parties have the right to a judge who is impartial and free of bias or prejudice. State v. Neil, 102 Ariz. 110, 112, 425 P.2d 842 (1967). The State’s right in this regard is equal to the defendant’s. See, e.g., State v. Barnes, 118 Ariz. 200, 575 P.2d 830 (App. 1978); County Attorney of Maricopa County v. Superior Court of Maricopa County, 11 Ariz. App. 346, 464 P.2d 666 (App. 1970).
Trial judges are presumed to be free of bias and prejudice. To rebut this presumption in a criminal case, a party must prove by a preponderance of the evidence that the judge is in fact biased or prejudiced. State v. Rossi, 154 Ariz. 245, 741 P.2d 1223 (1987). To overcome the presumption of judicial impartiality, a party must show “a hostile feeling or spirit of ill-will, or undue friendship or favoritism, towards one of the litigants.” State v. Myers, 117 Ariz. 79, 86, 570 P.2d 1252, 1259 (1977); State v. Cropper, 205 Ariz. 181, 68 P.3d 407 (2003). Generally, the bias and prejudice necessary to disqualify a judge “must arise from an extra-judicial source and not from what the judge has done in his participation in the case.” Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266 (App. 1977); State v. Thompson, 150 Ariz. 554, 557, 724 P.2d 1233 (App. 1986). However, if a judge displays “deep-seated favoritism or antagonism,” disqualification may ensue even though the conduct occurred in ongoing litigation:
Opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.
State v. Henry, 189 Ariz. 542, 546, 944 P.2d 57, 61 (1977), cert. denied, 523 U.S. 1028 (1998), quoting Liteky v. United States, 510 U.S. 540, 555-56 (1994).
Applying these legal tenets to the established facts, the Court finds as follows.
1. Deputy County Attorney Elizabeth Cottor. Ms. Cotter admittedly failed to appear for a court hearing about which she had notice. Although Judge Ryan’s ensuing minute entry was strongly-worded and evidenced frustration with the prosecutor’s conduct, which he was told was the second time she had failed to appear for a settlement conference in this case, it does not establish that he has a “hostile feeling or spirit of ill-will” toward either Ms. Cottor or the Maricopa County Attorney’s Office generally. Ms. Cottor testified that she does not know Judge Ryan but believes that based on the minute entry it is hard to draw a conclusion other than that he is biased or prejudiced against her. She was offended by the language in the minute entry and fears that this public record may affect her future as an attorney. Judge Ryan has not held Ms. Cottor in contempt and has, instead, given her the opportunity she purportedly wants: to explain her conduct and the surrounding circumstances in a hearing on October 19, 2007.
To his credit, the Maricopa County Attorney did file a transcript of the settlement conference so that Judge Ryan’s minute entry can be seen in perspective. The transcript records the following:
“Ms. Iacob: Your Honor, this is the second time that we’ve set a settlement conference and she did not appear…
The Court: … At that time (August 28, 2007), I had been advised of the case status and on my own order, the minute entry endorsed to Ms. Cottor set this for a resolution management conference for today’s date at 10:30. It is now 11:35 and no one from the County Attorney’s Office has called, contacted or otherwise made any effort to explain Ms. Cottor’s failure to appear at this settlement conference…
Ms. Iacob: Your Honor, I can tell you briefly what happened. I set the settlement conference and this was set at least three weeks before June 29th and a notice was sent to me by my secretary and to Ms. Cottor. It was also an e-mail from Judge Verdin’s Judicial Assistant sent to both of us regarding the same settlement conference.
On the eve of the settlement conference date, Ms. Cottor sent me an e-mail stating that she had no knowledge of that settlement conference and that if she would have, she would have not agreed to it, because she was not going to participate in settlement negotiations at that time. Judge Verdin vacated the settlement conference because Ms. Cottor made it clear that she will not participate in that settlement conference.” (Transcript, September 20, 2007, pp.4-5).
Ms. Cottor candidly admitted that had she been the judge who was presented with the above statements about an attorney she had never met: “I would have jumped up and down and gotten that attorney’s supervisor in my court, if not that attorney, ASAP.” In essence she would have been upset with the attorney but would have taken a different course and been more moderate in her comments.
Judge Ryan’s conduct regarding Ms. Cottor does not establish bias and prejudice.
2. The East Valley Tribune Articles. The State alleges that Judge Ryan has engaged in a public debate over Proposition 100 and defended the Court’s alleged failure to follow the law, while Maricopa County Attorney Andrew Thomas was advocating full implementation of the law. (Motion, p. 2). An examination of Exhibit 1 does not support this claim. First, in the April 28, 2007, article Judge Ryan is not quoted at all. Instead, the reporter wrote:
“Meanwhile, in Judge Tim Ryan’s courtroom, every Simpson hearing was continued, because not a single defense attorney could attend.
Afterwards, Ryan spoke of the challenges the Court and other agencies face in implementing the proposition. First, the process requires an enormous amount of coordination, especially for scheduling. A judge or commissioner, prosecutors and defense attorneys, law enforcement officers and court interpreters, and the defendants themselves must all be present on short notice. This places a particular burden on detention officers, who must coordinate inmate transportation for a jail system that receives 300 new prisoners every day. Then, the Clerk of Court must find time and courtroom space for a whole new step of the criminal court process.
Ryan also talked balancing (sic) the voter-elected law with the constitutional right to due process and interests such as victim’s rights.
Financially, each agency must find resources for the new process, although none has received additional funding to do so.” (Exhibit 1, State’s motion).
At most, the reporter paraphrased something Judge Ryan may have said outside a court hearing. Even if Judge Ryan said exactly what the reporter wrote, his comments do not establish bias or prejudice.
The County Attorney’s claim that Judge Ryan was quoted in direct opposition to his comments (Motion, p. 2) is also not supported by the record. As illustrated above, Judge Ryan was not quoted in the April 28, 2007, article. The May 17, 2007, article reveals that Judge Ryan specifically declined to respond to Thomas’ comments. The article reads, in pertinent part:
“County Attorney Andrew Thomas said the Court is putting up barriers to prevent prosecutors from making their cases to hold defendants without bail.
‘This appears to be the latest example of judicial undermining of Prop. 100,’ Thomas said Wednesday.
Judge Tim Ryan, who is second in command of the criminal court, declined to respond to Thomas’ accusation.
Thomas said judges are refusing to consider defendants’ confessions of illegal immigration as evidence and refusing to accept hearsay evidence which would be second-hand statements.
Thomas said police officers directly involved in the case can’t always make it to the hearings to testify about arrests, so prosecutors have tried to get such evidence in by asking Maricopa County Sheriff’s deputies who are cross-trained in immigration law to review arrest reports and testify in place of the other officers. But judges won’t allow them to do so, he said.
Ryan said hearsay evidence has to be reliable to be considered as evidence, noting that a deputy testifying about a report when he has no personal knowledge of its contents is not reliable.
Ryan, who has presided over several of the hearings, said he hasn’t personally dealt with confessions. (Exhibit 1)
Judge Ryan did not directly respond to Andrew Thomas’ comments, and the statements attributed to Judge Ryan do not establish bias or prejudice.
3. The Simpson Hearings. The County Attorney complains that Judge Ryan refused to consider hearsay evidence in Simpson hearings he conducted on May 4, 2007. In each of those hearings, the Maricopa County Attorney announced that he was unable to proceed without relying on hearsay evidence. Judge Ryan moved the six cases to the end of the calendar, and, when no witness appeared, released four of the defendants on their own recognizance and set bond for the other two. The County Attorney argues that hearsay should have been allowed as it has been since July 2, 2007, the effective date of Senate Bill 1265 and under Simpson v. Owens, 207 Ariz. 261, 55 P3d 478 (App. 2004). Even assuming for the sake of argument that the County Attorney is correct and Judge Ryan was in error legally, a judge’s legal rulings in a case cannot form the basis for disqualification. Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266 (App. 1977); State v. Thompson, 150 Ariz. 554, 557, 724 P.2d 1233 (App. 1986). Moreover, a party aggrieved by a judge’s legal decisions has ample remedies, including an appeal or a special action petition. The State does not appear to complain about any of Judge Ryan’s rulings in Prop. 100 cases since May of 2007 and especially since the effective date of Senate Bill 1265.
4. Deputy County Attorney Lisa Aubuchon’s Declaration. Ms. Aubuchon’s declaration states: “I have no personal knowledge of any hearing involving Judge Ryan.” She went on to relate information about Judge Ryan’s handling of Simpson hearings which had been “reported to her” from prosecutors she supervises. The Court gives little weight to this hearsay declaration, both because of its character as hearsay, but also because Mr. Windtberg’s declaration and the transcripts attached to it establish with first hand knowledge what Ms. Aubuchon is trying to prove.
5. Special Assistant Maricopa County Attorney Barnett Lotstein’s Declaration. Mr. Lotstein’s declaration is not based on his personal knowledge except for the letter he wrote Judge Ryan and his receipt of the response. Because of this and because Judge Ryan denied Mr. Lotstein’s version of the events at the Judicial Conference, the Court gives the declaration little weight. It does not establish the extrajudicial bias and prejudice or “deep-seated favoritism or antagonism” that would warrant disqualification
6. State v. Tawil. On June 11, 2007, Judge Ryan denied the defendant’s motion to dismiss gang allegations and recalculated the defendant’s last day. On June 15, 2007, Judge Ryan dismissed the case, but he specifically did so without prejudice (i.e., the charges can be refiled), and the defendant was ordered released from custody on that case only, meaning that the defendant remained in custody. Again, these actions by Judge Ryan do not establish the type of extrajudicial bias and prejudice or “deep-seated favoritism or antagonism” that would warrant disqualification.
7. State v. Darden. Judge Ryan dismissed this case without prejudice on June 26, 2007. The defendant was ordered released from custody as to that case only. As with the discussion regarding State v. Tawil, supra, the movant has failed to establish bias and prejudice.
8. State v. Medrano. On September 20, 2007, Judge Raymond Lee conducted a pre-trial conference at which he ordered the parties to file jury instructions and a joint pretrial statement by September 20, 2007. The defendant filed two sets of proposed jury instructions; the State filed none. No joint pretrial statement was filed. The State contends that Judge Ryan struck all of the State’s witnesses, but not the defendant’s. This is incorrect. Judge Ryan’s September 24, 2007, minute entry states, in part: “IT IS ORDERED striking all witnesses not properly listed in a Joint Pretrial Statement and filed with the Court on September 20, 2007, as had been ordered by Judge Lee.” Ms. Lee, the Deputy Maricopa County Attorney involved in the case, testified that she knew that Judge Lee had ordered a pretrial statement to be filed by September 20, 2007. Judge Lee also said that if a continuance were granted, the pretrial statement would not be needed by September 20, 2007. When the defense attorney filed a motion to continue, Ms. Lee assumed that a continuance would be granted and determined that she no longer was subject to Judge Lee’s order to file a pretrial statement. Therefore, she did not file one. However, the defense motion to continue was denied. Because the court-ordered pretrial statement had not been filed, as a sanction, Judge Ryan precluded both sides from calling witnesses. Ms. Lee testified that although she was offended by Judge Ryan’s minute entry, she could not say that Judge Ryan is biased or prejudiced against her. Once again, the movant’s claim of bias and prejudice is not supported by the record.
9. The Serial Shooter Cases. No evidence was presented to support this claim. Moreover, because the conduct at issue occurred during Judge Ryan’s judicial participation in a case and does not establish “deep-seated favoritism or antagonism,” it does not support the requested disqualification.
10. Deputy County Attorney Janine Lettelier. Because no evidence was presented to support this claim and the alleged conduct occurred during Judge Ryan’s judicial participation in a case and does not establish “deep-seated favoritism or antagonism,” it does not support the requested disqualification.
The Maricopa County Attorney’s Motion For Change of Judge For Cause in the above cases is DENIED.
Although the Maricopa County Attorney has not established bias or prejudice in Judge Ryan sufficient to cause this Court to order him to be disqualified in any of the individual cases that does not end the inquiry. The County Attorney argues that the ten matters cited above demonstrate a pattern that establishes a bias in Judge Ryan against the Maricopa County Attorney’s office and its prosecutors. The County Attorney seeks unprecedented relief: an order disqualifying Judge Ryan from all matters involving the Maricopa County Attorney’s Office, and not just from the specified cases. Such a far-reaching request is neither supported by the facts presented nor the law. In State v. City Court of the City Tucson, 150 Ariz. 99, 722 Ariz. 267 (1986), the Arizona Supreme Court considered whether a policy of the Chief City Prosecutor, which required all deputy prosecutors to routinely disqualify City Court Magistrate Fernando Fajardo in DUI cases was an abuse of Rule 10.2, Ariz.R.Crim.P. In finding that it was, the Supreme Court said:
“First, the procedure infringed upon the obligation of each Deputy City Prosecutor to exercise his or her individual professional judgment on a case by case basis. The admitted policy here was to require each deputy as a matter of policy to exercise peremptory challenge to Magistrate Fajardo, regardless of whether the attorney handling the case believed this was mandated. As the Washington Supreme Court has noted:
‘In our view, this fixed formula which requires a particular action in every case upon the happening of a specific series of events constitutes an abuse of the discretionary powers lodged in the prosecuting attorney.’
State v. Pettitt, 93 Wash. 2d 288, 296, 609 P.2d 1364, 1368(1980).
Second, the policy amounted to an improper attempt to influence a judge in his judicial decisions. The effect of this policy was to bring pressure upon Magistrate Fajardo. We agree with the dissenting opinion of Justice Tobriner of the California Supreme Court who stated:
‘In my view, the use of ‘blanket’ challenges under section 170.6 to disqualify a judge because of the judicial philosophy or his prior rulings on questions of law seriously undermines the principle of judicial independence and distorts the appearance, if not the reality, of judicial impartiality….
The hope of the City Prosecutor was that Judge Fajardo would make rulings favorable to this client. This is always the hope of an advocate and it can most often be realized by adequate preparation and professional exercise of a lawyer’s skills. The Tucson City Prosecutor’s policy with its attendant effects was an attempt to intimidate not only Magistrate Fajardo but, by example, the entire Tucson City Court. As such the policy was an abuse of the rules and a threat to the independence and integrity of the judiciary which cannot be allowed.” 150 Ariz. 99, 102-103.
The pending request is similarly inappropriate. The County Attorney has failed to rebut the presumption that Judge Ryan is free of bias and prejudice. See State v. Rossi, 154 Ariz. 245, 741 P.2d 1223 (1987); State v. Myers, 117 Ariz. 79, 86, 570 P.2d 1252, 1259 (1977); and State v. Cropper, 205 Ariz. 181, 68 P.3d 407 (2003). He has not carried his burden of proof regarding the specifically-relied-upon cases, let alone established that Judge Ryan has some over-arching bias or prejudice toward the Maricopa County Attorney’s Office. The Maricopa County Attorney’s Motion to preclude Judge Ryan from presiding over any case in which the County Attorney’s office is involved is DENIED.
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