State of Arizona v. Hon. marner/darren Goldin

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

THE STATE OF ARIZONA,
Petitioner,
v.
HON. JAMES E. MARNER, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF PIMA,
Respondent Judge,
DARREN IRVING GOLDIN,
Real Party in Interest.

No. CR-19-0315-PR
June 1, 2021

Appeal from the Superior Court in Pima County
No. CR20101551
The Honorable James E. Marner, Judge
AFFIRMED

Opinion of the Court of Appeals, Division Two
2 CA-SA 2019-0042
Filed August 30, 2019
VACATED
 STATE OF ARIZONA V. HON. MARNER/GOLDIN
Opinion of the Court

COUNSEL:

Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III,
Solicitor General, John Johnson, Division Chief Counsel, Nicholas
Klingerman (argued), Section Chief Counsel, Tucson, Attorneys for State of
Arizona
Pima County Legal Defender’s Office, Anne Elsberry (argued), Assistant
Legal Defender, Tucson, Attorneys for Darren Irving Goldin

Christopher D. Thomas, Karl J. Worsham (argued), Randal B. McDonald,
Austin C. Yost, Perkins Coie LLP, Phoenix, Attorneys for Amicus Curiae
Arizona Attorneys for Criminal Justice
____________________

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES
LOPEZ, BEENE, and MONTGOMERY joined. *

____________________

JUSTICE BOLICK, Opinion of the Court:

¶1 Before us is an issue of first impression for this Court: whether
an appearance of impropriety, arising from a prosecutor’s actual
misconduct, may be imputed to disqualify an entire prosecutor’s office. We
hold that, in the interests of fairness to the defendant and public confidence
in the judicial system, a trial court has broad discretion to vicariously
disqualify a prosecutor’s office based on an appearance of impropriety.

∗ Although Justice Andrew W. Gould (Ret.) participated in the oral
argument in this case, he retired before the issuance of this opinion and did
not take part in its drafting.

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Opinion of the Court

BACKGROUND

¶2 Darren Irving Goldin was indicted for first-degree murder in
2010. The Attorney General sought the death penalty.

¶3 In 2011, Goldin sought to disqualify the entire Tucson branch
of the Attorney General’s office based on ethical violations committed by
Assistant Attorney General Richard Wintory. Wintory had engaged in a
series of improper phone conversations with a court-appointed confidential
intermediary, whose assignment was to identify mitigation evidence for
defense counsel after locating and interviewing Goldin’s biological mother.
Wintory did not disclose this contact to defense counsel or the court for over
a week, and then disclosed only the first conversation. Wintory was
removed from the case (and subsequently left the Attorney General’s
office), and in 2014 he consented to a ninety-day suspension from the
practice of law in Arizona for violating E.R. 8.4. 1 Subsequently, Wintory
was suspended from the practice of law in Oklahoma for two years in an
opinion that detailed his misconduct in Goldin’s case. See generally State ex
rel. Okla. Bar Ass’n v. Wintory, 350 P.3d 131 (Okla. 2015).

¶4 Goldin eventually accepted a plea agreement, which mooted
the disqualification motion. However, the plea was revoked, and charges
were reinstated after Goldin prevailed on a claim of ineffective assistance
of counsel in 2016. The Attorney General also withdrew the death penalty
as a sentencing option.

¶5 Upon return to superior court, Goldin renewed his effort to
disqualify the Tucson office. In September 2019, following a hearing, the
court granted the motion to disqualify the Tucson office. Although at least
one other employee was involved in some of the phone calls, the court
emphasized that it found no improper conduct by anyone other than
Wintory. But it was impossible to know the content of the improper
conversations or whether they tainted the prosecution in any way. As the
trial court concluded, “I’m sure there’s a more eloquent way of putting this,

1 Ariz. R. Sup. Ct. 42, Ethical Rule (“E.R.”) 8.4(d) provides that it is
professional misconduct for a lawyer to “engage in conduct that is
prejudicial to the administration of justice.”

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but it just looks bad.” Based on the appearance of impropriety and the
importance of Goldin’s constitutional right to counsel, the court determined
that the Tucson office should be vicariously disqualified.

¶6 The court of appeals accepted special action jurisdiction and
granted relief. It overturned the superior court’s disqualification order
because it failed to consider the factors for vicarious disqualification set
forth in Gomez v. Superior Court, 149 Ariz. 223, 226 (1986), and remanded for
consideration of those factors. State v. Goldin, No. 2 CA-SA 2019-0042, 3 ¶¶
4, 6 (Ariz. App. Aug. 30, 2019) (dec. order).

¶7 We granted review because the question of vicarious
disqualification of a prosecutor’s office is of statewide importance and
likely to recur. We have jurisdiction pursuant to article 6, section 5(3) of the
Arizona Constitution.

DISCUSSION

¶8 “We review a trial court’s decision on the disqualification of
counsel for abuse of discretion.” State v. Tucker, 205 Ariz. 157, 162 ¶ 23
(2003) (citation omitted). We review conclusions of law de novo. State v.
Newell, 212 Ariz. 389, 397 ¶ 27 (2006) (citation omitted).

¶9 No previous decisions have addressed the issue before us, nor
have we applied Gomez beyond the actual conflict-of-interest or misconduct
contexts. In Gomez and the case on which it is based, Alexander v. Superior
Court, 141 Ariz. 157 (1984), we considered the standards by which the state
could disqualify defense counsel for a conflict of interest. The decision in
Alexander was predicated on then-applicable Canon 9 of the American Bar
Association’s Model Code of Professional Responsibility (“A Lawyer
Should Avoid Even the Appearance of Professional Impropriety”). 141
Ariz. at 161. The Court noted that “[o]nly in extreme circumstances should
a party to a lawsuit be allowed to interfere with the attorney-client
relationship of his opponent.” Id. The Court instructed:

[W]hen considering a motion for disqualification
based upon the appearance of impropriety, [the trial
court] should consider the following: (1) whether the

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motion is being made for the purposes of harassing the
defendant, (2) whether the party bringing the motion
will be damaged in some way if the motion is not
granted, (3) whether there are any alternative
solutions, or is the proposed solution the least
damaging possible under the circumstances, and (4)
whether the possibility of public suspicion will
outweigh any benefits that might accrue due to
continued representation.
Id. at 165.

¶10 In the two years between Alexander and Gomez, new Model
Rules of Professional Conduct were issued that omitted Canon 9. Still, the
Court held that appearance of impropriety “survives as a part of conflict of
interest.” Gomez, 149 Ariz. at 225. The Court reiterated the four factors as
“matters a court must consider when ruling upon a motion to disqualify
opposing counsel.” Id. at 226.

¶11 The State argues that the Gomez factors are inapplicable here
and that a defendant should be able to disqualify an entire prosecutor’s
office only by showing that a fair trial cannot otherwise occur. We disagree.
“Justice and the law must rest upon the complete confidence of the thinking
public and to do so they must avoid even the appearance of impropriety.”
State v. Latigue, 108 Ariz. 521, 523 (1972). In particular, “criminal
prosecutions must appear fair, as well as actually be fair.” Turbin v. Superior
Court, 165 Ariz. 195, 199 (App. 1990). Thus, the trial court should consider
these factors whenever a defendant seeks to disqualify an entire
prosecutor’s office, regardless of whether the basis for the motion is a
conflict of interest, misconduct, or appearance of impropriety.

¶12 As the trial court has the greatest familiarity with the facts and
visibility of a case before it, it is in the best position to determine whether
an appearance of impropriety is sufficient to undermine public confidence
and whether disqualification is appropriate under the circumstances. The
Gomez factors are useful in determining whether an appearance of
impropriety is sufficiently weighty to justify disqualification, and we
encourage trial courts to make the determination based expressly on those

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factors. Although the trial court here did not invoke Gomez nor discretely
assess each factor, which was the basis for the court of appeals’ remand,
Goldin, No. 2 CA-SA 2019-0042, at 3 ¶ 4, it implicitly considered them and
did not abuse its discretion by granting the disqualification motion under
the facts presented.

¶13 As the court of appeals correctly noted, the appearance of
impropriety here emanated from actual misconduct. Id. The misconduct
was so significant that it resulted in severe discipline. However, it was
impossible to determine the substance of the improper conversations
between Wintory and the confidential intermediary, or the extent to which
the information was disclosed to others in the office or to which it informed
prosecution strategy. Thus, the appearance of impropriety was grounded
not in a mere perception of wrongdoing but an actual finding of misconduct
with no ability to determine the scope of its impact.

¶14 Had the trial court applied the Gomez factors, it reasonably
could have supported its conclusion that the Tucson office should be
disqualified. Applying the first Gomez factor, whether the disqualification
motion was made for purposes of “harassing the defendant,” 2 149 Ariz. at
226, the State argues that Goldin brought the disqualification motion to
delay the proceedings. The State notes that Goldin accepted a plea
agreement despite the alleged appearance of impropriety and failed to raise
the issue in post-conviction review proceedings. But the trial court could
reasonably have concluded that, given Goldin’s past efforts to disqualify
the Tucson office, the renewed motion was not brought for harassment
purposes.

¶15 In terms of possible harm to the party making the motion if it
is not granted, id.—the second Gomez factor—the trial court noted that the
Tucson office’s prosecution of the case implicated Goldin’s right to counsel.
The unknown extent to which Wintory’s misconduct affected the overall

2 We reiterate that both Gomez and Alexander involved attempts by the state
to disqualify defense counsel, which raise special concerns that do not
apply to disqualification of a prosecutor’s office. See, e.g., Gomez, 149 Ariz.
at 226 (“[W]e note that there can be public suspicion regarding an attempt
by the state to disqualify a defendant’s attorney.”).

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prosecution also undermines confidence in a fair prosecution. In Burch &
Cracchiolo, P.A. v. Myers, the court considered a disqualification motion
based on counsel’s intentional use of confidential materials that were
inadvertently disclosed to him. 237 Ariz. 369, 371–72 ¶ 1 (App. 2015). In
such circumstances, the court reasoned that “instead of focusing upon
actual prejudice, which is difficult to quantify,” the trial court should
“consider whether prejudice may occur.” Id. at 377 ¶ 30. Here, the trial
court could reasonably have concluded that the prosecution’s deliberate
acquisition and concealment of confidential information could prejudice
the defendant’s subsequent prosecution, as we cannot know the extent to
which the improperly obtained knowledge remained part of the
prosecution.

¶16 The third factor, whether alternative adequate solutions
existed or if disqualification is the least damaging solution under the
circumstances, Gomez, 149 Ariz. at 226, is the closest here. Wintory left the
case and then the office. The case is now removed in time from the
precipitating incidents. But because the misconduct occurred over a period
of time, and we do not know which other staff members in the Tucson
office, if any, were privy to the improperly obtained information, it was
within the trial court’s discretion to disqualify the entire office. See
Rodriguez v. State, 129 Ariz. 67, 73–74 (1981) (holding that possible
disclosure of confidential information is a basis to impute disqualification).

¶17 The final factor, whether “the possibility of public suspicion
will outweigh any benefits that might accrue due to continued
representation,” Gomez, 149 Ariz. at 226, is especially pertinent where the
defendant is seeking to disqualify a prosecutor or an entire office. See, e.g.,
Latigue, 108 Ariz. at 523 (observing that, in a criminal prosecution, “even
the appearance of unfairness cannot be permitted”). As the Florida Court
of Appeals has observed, “[H]ow much of an advantage, if any, one party
may gain over another we cannot measure. However, the possibility that
such an advantage did accrue warrants resort to this drastic remedy for the
sake of the appearance of justice, if not justice itself, and the public’s interest
in the integrity of the judicial process.” Gen. Accident Ins. Co. v. Borg-Warner
Acceptance Corp., 483 So. 2d 505, 506 (Fla. Dist. Ct. App. 1986). We will not
ordinarily second-guess a trial court’s determination regarding public

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perception of a fair trial in deciding whether to disqualify a prosecutor’s
office.

¶18 Although the trial court should have analyzed each of the
Gomez factors to give the appellate courts a better indication of its reasoning,
its failure to do so under these circumstances is not alone a ground for
reversal, and we will defer to its judgment in determining that
disqualification was appropriate. Here, where actual misconduct may have
tainted the proceeding, the trial court did not abuse its discretion in
disqualifying the Tucson office.

CONCLUSION

¶19 For the foregoing reasons, we vacate the court of appeals’
opinion and affirm the trial court’s ruling.

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