State Ex Rel Mitchell v. Hon. palmer/durand

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA EX REL. RACHEL H. MITCHELL,
MARICOPA COUNTY ATTORNEY,
Petitioner,

v.

H ON. D AVID J. PALMER, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
Respondent Judge,

TAMIRA MARIE D URAND,
Real Party in Interest.

No. CR-21-0397-PR
Filed April 11, 2024

Appeal from the Superior Court in Maricopa County
The Honorable David J. Palmer, Judge
Nos. CR2019-005593-001; CR2020-001680-002
REVERSED AND REMANDED

Order of the Court of Appeals, Division One
Filed December 9, 2021
No. 1 CA-SA 21-0241
VACATED

COUNSEL:

Rachel H. Mitchell, Maricopa County Attorney, Krista Wood (argued),
Amanda Parker, Deputy County Attorneys, Phoenix, Attorneys for State of
Arizona
 STATE EX REL. MITCHELL V. HON. PALMER/DURAND
Opinion of the Court

Michael P. Denea (argued), Michael P. Denea, PLC, Phoenix, Attorney for
Tamira Marie Durand

Kristin K. Mayes, Arizona Attorney General, Joshua Bendor, Solicitor
General, Alice M. Jones, Deputy Solicitor General, Section Chief of Criminal
Appeals, Joshua C. Smith, Assistant Attorney General, Phoenix, Attorneys
for Amicus Curiae Arizona Attorney General

JUSTICE BEENE authored the Opinion of the Court, in which VICE CHIEF
JUSTICE TIMMER and JUSTICES BOLICK, LOPEZ, and KING joined. ∗

JUSTICE BEENE, Opinion of the Court:

¶1 A prosecutor’s conflict of interest erodes confidence in the
judicial system and undermines the fairness of criminal trials. Courts must
preserve the reality—and appearance—of fairness by disqualifying a
prosecutor when such conflicts arise. Here, we examine a unique
prosecutorial situation: when a crime victim works in the same office
responsible for prosecuting the individual accused of the crime. In this
Opinion, we explicate the factors trial courts should consider when
deciding whether to disqualify the entire prosecutor’s office when such a
situation arises.

¶2 Forty years ago, this Court outlined four factors that a trial
court should consider when deciding whether the appearance of
impropriety should disqualify counsel. Alexander v. Superior Court, 141
Ariz. 157, 165 (1984). Two years later, in Gomez v. Superior Court, 149 Ariz.
223, 226 (1986), this Court reiterated these factors—now commonly known
as the Gomez factors—as “matters a court must consider when ruling upon

∗ Chief Justice Robert M. Brutinel and Justice William G. Montgomery have

recused themselves from this matter.

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Opinion of the Court

a motion to disqualify opposing counsel.” In State v. Marner ex rel. County
of Pima, 251 Ariz. 198, 200 ¶ 11 (2021), we clarified that a court must apply
the Gomez factors “whenever a defendant seeks to disqualify an entire
prosecutor’s office.”

¶3 The trial court here did not consider the Gomez factors when
disqualifying the Maricopa County Attorney’s Office (“MCAO”). We,
therefore, vacate the trial court’s disqualification order and remand for an
application of the Gomez factors, as well as for consideration of Durand’s
due process rights, as articulated in this Opinion.

BACKGROUND

¶4 In two separate indictments, a grand jury indicted Tamira
Durand for several fraud-related offenses. One indictment alleged that
Durand illegally obtained a credit card in the name of Scott Blum. See A.R.S.
§ 13-2310. Blum is a prosecutor with MCAO—the agency responsible for
prosecuting Durand.

¶5 To resolve the case, the State offered Durand two plea
agreements. Displeased with the State’s offer, Durand responded by
submitting a plea deviation request seeking to reduce the time she would
spend incarcerated under the agreements. In her request, Durand raised
the “inherent possibility of conflict” because Blum, one of the listed victims
in her case, appeared to be a prosecutor with MCAO. If he was, Durand
indicated that “it would be proper for the Maricopa County Attorney’s
Office to withdraw from representation and enlist another agency to
prosecute this case.”

¶6 In response, MCAO admitted that Blum was a prosecutor
with the office but nevertheless denied Durand’s request. When denying
her deviation request, MCAO informed Durand that there was no
possibility of conflict because Blum worked in a separate division of the
office and had been “walled off from the beginning” of the case.

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Opinion of the Court

¶7 The parties then participated in a settlement conference to
further discuss the possibility of resolving the case by plea agreement. 1
Before the conference, Durand’s counsel again raised the issue of MCAO’s
purported conflict. In response, the prosecutor suggested that the matter
be continued to address the alleged conflict, but Durand declined. Instead,
Durand asked to proceed, waiving any potential conflict for the limited
purpose of discussing a possible settlement.

¶8 After several unsuccessful settlement attempts, Durand filed
a motion to disqualify MCAO, alleging that Blum’s status as a listed victim
created a conflict of interest. She argued that her “due process rights will
be violated if she is prosecuted by an agency with a conflict of interest” and
that “there may be pressure to extend an offer that is less favorable to the
defendant or even force the case to trial” because of Blum’s involvement.
In its response, the State asserted that Blum’s alleged conflict was not
imputed to the entire office, there was no appearance of impropriety, and
that the prophylactic screening procedure implemented by MCAO to avoid
a conflict was adequate.

¶9 The trial court granted Durand’s motion, concluding that the
“interest of justice” warranted disqualification. But the court did not
invoke Gomez or consider the Gomez disqualification factors in its order.
Even so, the court ordered MCAO to transfer the prosecution of this case to
another prosecutorial agency in Arizona.

¶10 The State subsequently filed a petition for special action with
the court of appeals. The court accepted jurisdiction but denied relief. The
State then petitioned for review. We granted review because the question
of whether a prosecutor’s office should be disqualified when an employee
is a victim in its criminal case is an issue of statewide importance and likely
to recur. We have jurisdiction pursuant to article 6, section 5(3) of the
Arizona Constitution.

1 Durand alleges that Blum attended this, as well as a subsequent,
settlement conference. The record before us, however, does not
conclusively establish whether this occurred.
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Opinion of the Court

DISCUSSION
¶11 We apply an abuse of discretion standard to a trial court’s
decision to disqualify counsel. Marner, 251 Ariz. at 200 ¶ 8. However,
“[w]e review conclusions of law de novo.” Id. “An error of law in reaching
a discretionary conclusion may constitute an abuse of discretion.” State v.
Chambers, 255 Ariz. 464, 467 ¶ 13 (2023) (quoting State v. Thompson, 252 Ariz.
279, 290 ¶ 26 (2022)).

¶12 The party seeking disqualification must demonstrate that the
requested remedy is appropriate. State ex rel. Romley v. Superior Court, 184
Ariz. 223, 228 (App. 1995). This is because a party should only “be allowed
to interfere with the attorney-client relationship of his opponent” in
“extreme circumstances.” Alexander, 141 Ariz. at 161.

I.
¶13 When ruling on a motion to disqualify opposing counsel, a
trial court must consider the four Gomez factors:

(1) whether the 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.

Gomez, 149 Ariz. at 226 (quoting Alexander, 141 Ariz. at 165).

¶14 But Durand did not merely seek to disqualify opposing
counsel; she sought to disqualify an entire prosecutorial office. Our
guidance in Marner governs this situation. There, we clarified how a trial
court should analyze a defendant’s request to disqualify a prosecutor’s
office. We concluded that “the trial court should consider [the Gomez]
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,
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Opinion of the Court

misconduct, or [the] appearance of impropriety.” Marner, 251 Ariz. at 200
¶ 11. We explained that the trial court should conduct this analysis because
it is most familiar with the facts of a case, and “is in the best position to
determine whether an appearance of impropriety is sufficient to undermine
public confidence,” and consequently, “whether disqualification is
appropriate under the circumstances.” Id. ¶ 12. Therefore, trial courts must
consider the Gomez factors when ruling on a motion to disqualify a
prosecutor’s office. Id.

¶15 Here, the State points out that the trial court failed to even
consider the Gomez factors when it evaluated Durand’s motion to disqualify
MCAO. Instead, the court summarized the parties’ disqualification
arguments before granting Durand’s motion “in the interest of justice.”
This was error. See Chambers, 255 Ariz. at 468 ¶ 17 (concluding the trial
court erred in granting motion to disqualify prosecutor’s office without
considering Gomez factors). And this error prevents us from meaningfully
reviewing the court’s ruling.

¶16 Accordingly, we reverse the trial court’s order disqualifying
MCAO and remand for it to evaluate Durand’s motion by applying the
Gomez factors. However, the circumstances of this case implicate the
defendant’s due process rights as well as the victim’s rights under the
Arizona Constitution. We therefore emphasize that the trial court should
assess those rights within the Gomez framework. We now explain this
process.

II.

¶17 In Arizona, both criminal defendants and crime victims enjoy
constitutional protections. Due process requires that a criminal defendant
receive a fundamentally fair trial. California v. Trombetta, 467 U.S. 479, 485
(1984) (“Under the Due Process Clause of the Fourteenth Amendment,
criminal prosecutions must comport with prevailing notions of
fundamental fairness.”); accord State v. Melendez, 172 Ariz. 68, 71 (1992)
(“The touchstone of due process under both the Arizona and federal
constitutions is fundamental fairness.”). A defendant’s right to a
fundamentally fair trial is critically important because it “preserves both
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Opinion of the Court

the appearance and reality of fairness, ‘generating the feeling, so important
to a popular government, that justice has been done.’” Marshall v. Jerrico,
Inc., 446 U.S. 238, 242 (1980) (quoting Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123, 172 (1951) (Frankfurter, J., concurring)).

¶18 Concomitantly, the Arizona Constitution protects a crime
victim’s right to justice and due process in the Victims’ Bill of Rights (the
“VBR”). The VBR and its implementing legislation grant victims extensive
rights, including the right to be informed of—and attend—all criminal
proceedings where the defendant has a right to be present. Ariz. Const. art.
2, § 2.1(A)(3); see also A.R.S. §§ 13-4405 to -4427. Victims also have the right
to refuse interviews as well as depositions, and have specific privacy rights,
including the right to certain safeguards to minimize contact with the
defendant, and to prevent the release of personally identifying information.
Ariz. Const. art. 2, § 2.1(A)(5); see also A.R.S. §§ 13-4430, -4431, -4433, -4434.
Moreover, in conjunction with these rights, this Court has emphasized that
the VBR requires the state to communicate with the victim throughout a
criminal proceeding to ensure that the victim’s rights are preserved. State
v. Lamberton, 183 Ariz. 47, 50 (1995).

¶19 In this case, Durand argued that her “due process rights will
be violated if she is prosecuted by an agency with a conflict of interest.”
The State disagrees, asserting that a conflict does not exist and that the
Gomez factors militate against disqualification. The State further maintains
that it has “done everything in its power to eliminate any appearance of
impropriety by implementing an effective screen since the beginning of the
case.” In its amicus brief, the Attorney General agrees with the State and
adds that “[t]he creation and maintenance of an ethical screen is a classic
example of an alternative solution that ameliorates any potential harm and
ensures that an ethical conflict has no impact on a client’s representation by
the remaining lawyers in an organization.” MCAO and the Attorney
General rely on Romley to support their contention that the screening
procedure put in place sufficiently protects Durand’s right to a fair trial.
But their reliance is misplaced.

¶20 In Romley, MCAO hired a former defense attorney as a deputy
county attorney. 184 Ariz. at 225. MCAO then adopted screening
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procedures to protect against inadvertent disclosure of confidential
information and instructed its new prosecutor not to discuss any previous
representation of criminal defendants with MCAO employees. Id. at 226.

¶21 In recognizing that an effective screening procedure may be
sufficient to defeat a motion to disqualify, the Romley court explained that
a successful screen “must be designed both to eliminate opportunities for
inadvertent disclosure and to provide a genuine appearance of a security
wall around the subject attorney.” Id. at 228. That is, a successful screen
must preserve both the reality and appearance of fairness. After this
explanation, the court of appeals vacated the trial court’s order
disqualifying the prosecutor’s office, concluding that MCAO’s screening
procedure was adequate because (1) it prohibited the new prosecutor from
interacting with MCAO attorneys who were prosecuting his former clients,
and (2) it instructed all MCAO employees not to discuss the new
prosecutor’s previous cases with him. Id. at 230.

¶22 The screening procedure approved in Romley is not adequate
here, however, for two reasons. First, the screening in Romley was
established to prevent MCAO’s vicarious disqualification because the
subject attorney had “participated personally and substantially” in certain
ongoing cases “while in private practice.” See id. at 226 (quoting Ariz. R.
Sup. Ct. 42, Ethical Rule (“ER”) 1.11). Here, Blum’s conflict—which may
give rise to an appearance of impropriety—is that, as a victim, he “is likely
to be a necessary witness” in Durand’s trial. See Ariz. R. Sup. Ct. 42, ER
3.7(a). Unlike in Romley, where the subject attorney had a previous
attorney-client relationship with the defendants being prosecuted by
MCAO, Blum’s conflict does not arise from a prior client relationship but
from his own interest as a victim. Because of this, screening efforts may
impact whether an appearance of impropriety exits, but they do not
necessarily insulate an office from a conflict. See Romley, 184 Ariz. at 229
(“The premise underlying the non-disqualification policy of ER 1.11(c) is
that a prosecutor usually has no particular motive to intentionally breach
the security wall created by the screening mechanism.”).

¶23 Second, and more importantly, a Romley-style screening could
never be effective because Blum, the focus of MCAO’s screen, is not merely
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Opinion of the Court

an MCAO employee but also a crime victim who possesses the full panoply
of victims’ constitutional rights. Any complete screening process would
unlawfully impinge upon his rights because it would restrict his ability to
exercise his constitutional rights as a victim, including appearing at
proceedings or consulting on plea deals. Our constitution will not
countenance such a restriction. Accordingly, though a complete screening
like the one in Romley may ameliorate any potential harm to Durand, it
would impermissibly vitiate Blum’s constitutional rights.

III.
¶24 This Court’s jurisprudence recognizes that certain
prosecutorial conflicts may implicate a defendant’s due process rights. See
e.g., Chambers, 255 Ariz. at 468–70 ¶¶ 19–28; Marner, 251 Ariz. at 201 ¶ 15.
And in R.S. v. Thompson, 251 Ariz. 111, 118 ¶ 20 (2021), we concluded that—
when a defendant’s due process right to a fair trial and a victim’s state
constitutional rights directly conflict—the due process right prevails. See
also Morehart v. Barton, 226 Ariz. 510, 516 ¶ 23 (2011) (directing trial courts
to enforce victims’ rights unless the result would deprive the defendant of
a fair trial); State v. Riggs, 189 Ariz. 327, 330 (1997) (“[I]f, in a given case, the
victim’s state constitutional rights conflict with a defendant’s federal
constitutional rights to due process . . . the victim’s rights must yield.”);
State v. Bible, 175 Ariz. 549, 602 (1993) (“It cannot be doubted that victims of
crime, and their families, have certain rights. It is equally clear, however,
that these rights do not, and cannot, conflict with a defendant’s right to a
fair trial.” (internal citations omitted)). In such circumstances,
disqualification of a prosecutorial office will preserve both the defendant’s
due process rights and the exercise of the full panoply of victims’ rights.
Accordingly, on remand, the trial court should consider whether the
circumstances in this case constitute a conflict that violates Durand’s due
process right to a fair trial.

¶25 No bright-line rule for determining whether a conflict such as
the one presented in this case constitutes a due process violation has been
established; thus, courts must analyze each case according to its specific
facts. As the Supreme Court has observed:

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Opinion of the Court

[D]ue process “is not a technical conception with a fixed
content unrelated to time, place and circumstances.” Rather,
the phrase expresses the requirement of “fundamental
fairness,” a requirement whose meaning can be as opaque as
its importance is lofty. Applying the Due Process Clause is
therefore an uncertain enterprise [that] must discover what
“fundamental fairness” consists of in a particular situation by
first considering any relevant precedents and then by
assessing the several interests that are at stake.

Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 24–25 (1981) (citation omitted)
(quoting Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367
U.S. 886, 895 (1961)).
¶26 We believe the Gomez factors, as clarified in this Opinion,
provide a suitable analytical framework for a trial court under these
circumstances. As previously indicated, “neutrality in adjudicative
proceedings” is vital because it “preserves both the appearance and reality
of fairness.” Marshall, 446 U.S. at 242. And if a defendant’s due process
rights to a neutral and fair trial directly conflict with a victim’s state
constitutional rights, the defendant’s rights prevail. R.S., 251 Ariz. at 118
¶ 20. Accordingly, when applying the Gomez factors, the trial court must
analyze the parties’ relevant interests in determining whether the alleged
conflict violates the defendant’s right to a fundamentally fair trial.
Specifically, the court must determine whether the defendant’s right to a
fair trial will “be damaged in some way if the motion [to disqualify] is not
granted,” and whether the appearance of impropriety “will outweigh any
benefits that might accrue due to continued representation.” See Gomez, 149
Ariz. at 226 (quoting Alexander, 141 Ariz. at 165).

¶27 Here, the parties do not brief, and we do not attempt to
address, every conceivable due process violation this circumstance
presents. But the following are examples of issues a trial court should
consider when applying the Gomez factors. For instance, if a victim has a
higher level of prominence and authority in the prosecutor’s office,
permitting that office to prosecute the defendant could damage the
defendant’s due process right to a fair trial. The more intra-office influence

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the victim has, the greater the risk the prosecution could be unduly affected.
Even if the victim cannot directly influence the prosecuting attorney’s
handling of the case, there may be a risk of impropriety if the victim has
internal influence over the prosecutor. These types of situations could
implicate the Gomez factor concerning whether the defendant will be
damaged if the motion is not granted. Additionally, the nature and
circumstances surrounding the offense may be important and could affect
the Gomez factor that weighs the possibility that public suspicion will
outweigh any benefits that might accrue due to continued representation.
For example, prosecuting a serious or violent crime on behalf of a fellow
employee may motivate a prosecutor to aggressively pursue serious
charges or sentences, whereas prosecuting a minor infraction is less likely
to inspire similar truculence. Similarly, the court should consider whether
the exercise of a victim-employee’s rights (e.g., to be present at hearings)
would likely cause public suspicion or the appearance of bias. A trial court
should consider situations like these when determining whether a
prosecutor’s office may remain on a case without rendering the prosecution
unfair or creating the appearance of impropriety.

¶28 These examples are clearly not exhaustive, but rather
illustrative of the circumstances that a trial court should consider when
deciding whether a conflict of interest contravenes a defendant’s due
process right to a fair trial. Because a motion to disqualify involves a
fact-intensive inquiry, and will likely necessitate a hearing, we do not adopt
a bright-line rule requiring the disqualification of a prosecutor’s office when
a victim is an employee of that agency. Rather, a trial court should consider
all relevant evidence when making this decision.

IV.
¶29 Finally, because the circumstance presented in this case is
likely to recur, we delineate best practices for prosecutorial offices when
they discover that an employee is also a crime victim.

¶30 Section 13-4434(A) prevents the release of a victim’s
personally identifying information. The trial court, nonetheless, “may
order the victim’s identifying and locating information to be disclosed . . . if

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it is necessary to protect the defendant’s constitutional rights.”
§ 13-4434(D). However, before the court can disclose the victim’s
information, “the victim must be notified and has the right to be heard by
the court.” Id. Subsection (D) also states that once a court discloses a
victim’s identifying information, “the defendant’s attorney may not
disclose the information to any person other than the attorney’s staff and a
designated investigator,” and that a victim’s information cannot be
disclosed to the defendant “without specific authorization from the court.”

¶31 Therefore, upon learning that an employee is a crime victim,
the state should file an ex parte motion under § 13-4434(D), notifying the
trial court of the possible conflict. In compliance with subsection (D), the
court should determine whether the victim’s identifying and locating
information must be disclosed. Though it is difficult to conceive of a
situation where disclosing that a prosecuting office employs a victim is not
necessary to protect a defendant’s rights, we decline to fashion a bright-line
rule requiring disclosure. Instead, we are confident the superior court will
properly weigh all competing interests when deciding whether disclosure
is necessary and, if so, how to make that disclosure. This procedure
comports with relevant statutes and allows the trial court to protect the
constitutional rights of both the victim and defendant.

CONCLUSION
¶32 For the foregoing reasons, we reverse the trial court’s order
disqualifying MCAO, vacate the court of appeals’ order, and remand to the
trial court for further proceedings consistent with this Opinion.

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