That Would Be You, Mr. Chief Justice

It's rare for an appellate judge to speak publicly about any pending case, much less one that may end up in his court someday.

So it made for a good news story on February 26 when the chief justice of the Arizona Supreme Court invoked a high-profile South Phoenix gang-rape case to make a point about Maricopa County's slow-moving criminal-court calendars.

Judge Thomas Zlaket's comments to the Arizona Republic made the paper's front page. Zlaket said he was appalled that 10 teenaged defendants had remained incarcerated at the Madison Street Jail for almost two years without trial. (All the youths now have been released on bail. Four of the 10 have pleaded guilty to reduced charges involving the girl, who was 15 at the time of the crime. They are awaiting sentencing.)

"I find that story absolutely shocking," Zlaket was quoted as saying about the length of the case. "I keep hearing that somebody serious is going to file a civil-rights lawsuit that could be a real barn burner. That's going to knock Maricopa County's socks off."

The story's original hook was a testy February 24 letter from Zlaket to Maricopa County Presiding Judge Robert Myers. The three-page letter chastised Myers about the slow pace with which the county's felony cases generally are processed.

"Based on information I have been provided," Zlaket's letter said in part, "Maricopa County is not even close to meeting acceptable time standards in its handling of felony criminal cases. . . . There can be no doubt that delay degrades the quality of justice and helps no one in the long run."

Some of Zlaket's points were well-taken--for example, Maricopa County's criminal-court calendars do move as slowly as a clogged artery.

But the justice's discussion of the February 1997 gang-rape case as a poster child for all things wrong with the system was, at best, misguided.

Zlaket didn't mention that his own court held things up for several months--partly by allowing less-than-timely defense attorneys extra time to file routine paperwork.

For a while, Superior Court observers had been surprised that the trial before Judge Gregory Martin might start just 14 months after the youths' arrests. That would have been a speedy trial by Maricopa County standards in a case with a large number of defendants (each with his own attorney) and thorny legal issues.

But in April 1998, the Arizona Court of Appeals and, later, the Arizona Supreme Court got involved in the controversial case just a few days before it was set to go to trial.

What happened, according to court records, was this: On April 1, prosecutors asked Martin to put the case on hold until an appellate court considered two of his key pretrial rulings.

One was that the victim would have to undergo a mental-health examination by defense experts. The other was that the jury could hear testimony about a new rape allegation the girl had made in a different state--an accusation she later recanted.

The Court of Appeals--one step below the Arizona Supreme Court--took three months to decide on both issues. In late June, those judges ruled in the prosecution's favor on the mental-health issue, but upheld Martin's decision to allow testimony on the recanted accusation.

Hoping for a better shake, prosecutors on July 9 took the recantation issue to the state's highest court for review. Around that time, defense attorneys asked the high court to reconsider the Court of Appeals ruling on the mental-health exam.

The case then languished at the Supreme Court for six months--from July 1998 until this January.

In October, defense attorneys asked the court if it could respond in writing to the state's legal position on the two issues. However, that request came two months late, according to court rules.

The Supremes dallied some more, not doing anything with the case until December 4--after two more months had elapsed. That day, the court issued a docket entry that noted, "The motion for permission to file late is predicated on a number of factors which are not particularly persuasive, but are at least somewhat understandable, given the fact that nine individuals [one defendant already had pleaded guilty] . . . are apparently each represented by separate counsel."

The justices gave the defense attorneys 10 days to file their already tardy response, which they did. Yet another month passed. Then, on January 12, the Supreme Court heard oral arguments from the prosecution and defense.

The justices finally issued their ruling a week later, and it made everyone involved in the case shake their heads: Without comment, the high court sent the case back to Judge Martin. By doing so, it had said that the Court of Appeals had gotten it right more than seven months earlier.

Since January, by the way, three more defendants in what has become known as the "Phoenix 10" case have pleaded guilty to reduced charges. Each will be eligible for probation at sentencing, which is now scheduled for early April.

All three youths have pleaded to felonies of a "non-dangerous, non-repetitive" nature, a term of legal art with particular irony in this case.

Justice Zlaket declined another opportunity to talk about the rape case, says Supreme Court spokesman John MacDonald.

"It's a pending matter before the trial court," MacDonald says, "and I think that the justice doesn't think it's proper to comment any more about that specific case."

Adds MacDonald, "I won't deny that there's delay on the appellate level, too, and we're always looking for ways to make things work better. But I think the court always does what it can to be fair and reasonable to both sides in an argument."

Contact Paul Rubin at his online address: [email protected]

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Paul Rubin
Contact: Paul Rubin