Brown & Little, P.L.C. » Procedural Rules, Trial » Are They Breaking The Rule?

Are They Breaking The Rule?

About two and a half years ago, I wrote about the Maricopa County Superior Court running out of judges to preside over a client’s trial. It happened again yesterday, but in a different way.

At 8:00 a.m., I went to the master calendar assignment judge’s courtroom. If the system was a game show, he’d be the host. He spins his wheel of fortune and assigns your case to the judicial officer who’s next in line. Until that point, you don’t really know who you’re going to get. For all practical purposes, the case is assigned to what I like to call the “Honorable Master Calendar” on my captions.

It was a huge docket, and the judge began assigning cases. Unlike the last time I wrote about it, however, he never ran out of judges. Yesterday, there was always one judge left. The leftover judge has been on the bench for over three decades. He’s an institution, a guy who’s actually been a judge so long that he’s technically retired. He is just helping out as a judge pro tempore.

He’s a fascinating guy who looks a lot like Mel Brooks. His stride is reminiscent of Groucho Marx, and he walks at the roughly the pace where most people are about to break into a run. He loves his job so much that he not only starts his regular calendar promptly, something quite unusual in superior court, but also schedules everything to start half an hour earlier than any other judge.

He has a strange tendency to answer his own phones, which is quite confusing when you try to call his judicial assistant and someone picks up saying “Bob speaking, how can I help?” One friend tells a story about an impossible client who had a rare moment of being reasonable and wanted to accept a great plea offer at the last minute. The deal expired that day, which was Christmas Eve. Sure enough, the judge came through and held a last minute hearing when most judges would’ve done anything to avoid lending a hand.

Despite the fact he’s a nice guy and a fair, smart judge, prosecutors seem to hate him. They won’t let defense lawyers put settlement conferences in front of him, and many try desperately to avoid having him do any sentencing hearings. Yesterday, they were refusing to try their cases in front of him, one after another. The calendar ended with a handful of defendants not able to proceed with trial for lack of a judge and one of the best judges in the state not able to proceed with trial for lack of a case. He was ready, willing, and exceptionally able to take a trial, but every single county attorney was demanding a change of judge upon request. That, to me, seems like it may a big problem, and not just because it deprived all those defendants of their day in court.

Rule 10.2 of the Arizona Rules of Criminal Procedure says that, in any criminal case, each side is entitled as a matter of right to a change of judge. All an attorney has to do is file a pleading entitled “Notice of Change of Judge,” state the name of the judge to be changed, and sign it. It does require an avowal, however. The moving lawyer must say that the request is made in good faith and not for the following reasons:

1. For the purpose of delay;
2. To obtain a severance;
3. To interfere with the reasonable case management practices of a judge;
4. To remove a judge for reasons of race, gender or religious affiliation;
5. For the purpose of using the rule against a particular judge in a blanket fashion by a prosecuting agency, defender group or law firm (State v. City Court of Tucson, 150 Ariz. 99, 722 P.2d 267 (1986));
6. To obtain a more convenient geographical location; or
7. To obtain advantage or avoid disadvantage in connection with a plea bargain or at sentencing, except as permitted under Rule 17.4(g).

The case cited in the fifth subsection involved a city prosecutor who promulgated a policy to disqualify a certain magistrate in any proceeding involving DUI. The Supreme Court of Arizona held that was an improper restriction on the professional independence of the individual city prosecutors as well as a threat to the independence of the judiciary and an abuse of Rule 10.2 that significantly frustrated its purpose.

The prosecutors yesterday may not have been acting pursuant to a specific office policy, but it seemed undeniable that the county attorney’s office was using Rule 10.2 against a particular judge in a blanket fashion. What would have happened had one of those line prosecutors let that judge do the case? I suspect there would be some consequences, but correct me if I’m wrong. I have a tough time thinking that every one of those attorneys used his unrestricted professional independence to decide to get a different judge. Half of them probably didn’t even know why they were all asking for someone new.

The prosecutors picked a judge whose independence surely cannot be threatened by something as silly as a policy to change judges when his name pops up, but doing that to any number of other judges could easily give rise to such a problem. That concerns me, but not as much as the request itself. I left court with serious questions about how each of those prosecutors was able to make his or her avowal as an officer of the court that the fifth reason wasn’t at play. Can any of you enlighten me about why that isn’t what’s happening?

Filed under: Procedural Rules, Trial · Tags: , , , , , , , , ,

4 Responses to "Are They Breaking The Rule?"

  1. […] trial set to start that morning. I’d also have an 8:00 a.m. pretrial in front of a judge who starts his calendar earlier than everyone else. Add to that two 8:15 a.m. initial pretrial […]

  2. […] Brown writes about how Arizona prosecutors abuse their ability to choose which judge they appear in front of – […]

  3. Lyle says:

    I’ll be waiting to see if you get any responses from the County Attorney’s office–doubtful.

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