Judge Changes Mind In Marin "Burning Man" Case, Says We Can Sit In At Trial: UPDATE

Maricopa County Superior Court Judge Bruce Cohen reversed field yesterday, ruling that I can sit in his courtroom and report on what's happening in the quirky arson case of State of Arizona v. Michael Marin.

Earlier in the week, the judge booted me out of court at the request of Marin's defense team after prosecutors indicated moments before opening statements that they might be calling me as a rebuttal witness should Marin take the stand in his own defense--a strong possibility.

The reason for my possible testimony is a story I wrote, published in 2009, in which Marin made several statements that did not comport with facts I uncovered while reporting the piece. 

(No, he did not confess to burning up his lovely Biltmore Estates home in July 2009, quite the contrary.)

"Here's the unvarnished truth from the horse's mouth," Marin told me during our wide-ranging interview at his East Valley home, and it went from there.

Putting it as nicely as possible. the unvarnished" nature of the onetime Wall Street trader's myriad tales left something to be desired.

So, I will be sitting in whenever possible at the trial, which is expected to last about a month. And then, I will write something up for readers to chew on.

Here is the key part of Judge Cohen's ruling, which he did pretty much overnight:

"This Court has therefore focused on the central issue of whether there is any potential prejudice to Defendant if Mr. Rubin is permitted to be present in the courtroom despite invocation of the rule for exclusion of witnesses.   The court is relying upon the offer of proof made by the State on May 21, 2012.  It is best summarized as follows:

"Sometime after the incident in this matter (which occurred on July 5, 2009), Mr. Rubin had the opportunity to interview Defendant in Mr. Rubin's capacity as a reporter for New Times. By all indications, Defendant voluntarily participated in the interview.  Thereafter, one or more articles were authored by Mr. Rubin and published by New Times. Included therein were quotes from statements attributed to Defendant relating to the fire and Defendant's circumstances that related thereto. 

"If called to testify, Mr. Rubin would be asked whether the Defendant made certain specific statements to Mr. Rubin.  His testimony would be relevant only if Defendant denies making statements material to these proceedings and then only for the purpose of impeachment.his Court has carefully considered the possible prejudice that Defendant could suffer if Mr. Rubin is permitted to be present in the courtroom before he testifies.

"While it is difficult to prove a negative, there is a complete absence of any potential prejudice that can be foreseen by this Court.  Defendant's "statements" are known to both parties.  They were published and as such, whether Mr. Rubin is present during other testimony or not, there is no basis to conclude that his presence in the courtroom prior to his testimony would or even could serve to color his testimony in any fashion or that he would collude with other witnesses in any fashion.

"He will not permitted to be asked whether he had any opinion about Defendant or his version of events nor will Mr. Rubin be providing any substantive information relating to the charged offense.  In that sense, his sole involvement will be to establish the foundation required to introduce the potentially inconsistent statements of Defendant and nothing more.  If Defendant elects not to testify, Mr. Rubin's testimony will not be necessary.  If Defendant elects to testify, Mr. Rubin's testimony will become superfluous if the Defendant testifies consistent with his attributed comments to Mr. Rubin during their interview.   The only foreseeable 'prejudice' would therefore be created by Defendant providing inconsistent statements.  Such prejudice would be caused by Defendant, not by the presence of Mr. Rubin during these proceedings

"Further, the prejudice' contemplated by the rule is not whether the testimony of Mr. Rubin could be detrimental to Defendant's position.  Rather, the prejudice must be suffered as a result of the potential witness having been present during the testimony of prior witnesses.  There is no factual basis to conclude that any such prejudice exists or could exist.

"This Court is convinced that the mandatory nature of Rule 9.3 cannot be used to supplant a constitutional right that applies to Mr. Rubin and the press in general.  Under these circumstances, the court is duty bound to look beyond the mandatory language of the rule.

"IT IS THEREFORE ORDERED that Paul Rubin of New Times shall be permitted to be present during all court proceedings in his capacity as a reporter for New Times.  As further protection for Defendant's rights, however, this Court will revisit the issue of potential prejudice to Defendant, if requested by counsel, immediately prior to the testimony of Mr. Rubin.  If there is any indication of prejudice to Defendant that is not presently evident arising from Mr. Rubin's presence during other testimony, this Court may consider excluding Mr. Rubin as a witness at that time."  

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Paul Rubin
Contact: Paul Rubin