The Arizona Supreme Court has banned all attorneys working in the attorney general’s office in Tucson from investigating a new trial in a 21-year-old homicide case.
In a unanimous decision on Monday, the judges said there was reason to believe that Darren Irving Goldin could not get a fair trial because one of the lawyers in that office had improper conversations with a court-appointed confidential mediator. That attorney, Richard Wintory, eventually left the attorney general’s office and was later suspended from practicing law for 90 days.
But Goldin’s attorneys argued – and the Supreme Court agreed – that there was no way of telling what Wintory had shared with other lawyers in the office. Last but not least, they said it casts a shadow over Goldin’s ability to get a fair trial.
None of this means Goldin is off the hook.
It simply means that the process must be led by someone other than the lawyers who work for Attorney General Mark Brnovich from his Tucson office. Anne Elsberry of the Pima County’s Legal Defender’s Office said this could be a different unit of the attorney general or it could be outsourced to a district attorney.
The public prosecutor’s office did not respond immediately.
Goldin was charged in 2010 on the 10-year death of a colleague drug dealer Kevin David Estep. Originally, the public prosecutor wanted to apply for the death penalty.
The court appointed Mary Fornino as a confidential mediator to see if there were any factors against the execution. And that was made more difficult by the fact that Goldin’s birth mother – he was adopted as a child – refused to speak to her.
This led to a conversation between Wintory and Fornino that was not supposed to take place and that he initially did not disclose. He was then removed from the case.
At that point, the Attorney General’s Office offered Goldin a plea deal, which he accepted. But Elsbery said it was cleared when he didn’t get the promised terms.
That set the stage for a new trial – and Goldin’s motion to disqualify anyone who worked in the same office as Wintory.
Pima County Supreme Court Justice James Marner approved the motion, saying there was no way of knowing what conversations Wintory had had with other prosecutors and whether that tarnished the case.
“I’m sure there is a more eloquent way of saying that, but it just looks bad,” said Marner.
The appeals court disagreed, saying Marner failed to consider the right factors before making a decision.
But Judge Clint Bolick, who wrote for the unanimous high court, said the trial judge had legitimate reasons for his decision.
“Justice and justice must be based on the full confidence of the thinking public,” he wrote, citing previous court judgments. “And to do this, you just have to avoid the appearance of inappropriateness.”
And this case, Bolick said, involved more than just poor judgment. Instead, it was actual misconduct.
“The misconduct was so serious that it led to strict discipline,” he wrote. “The appearance of inappropriateness was not based on the mere perception of wrongdoing, but on the actual detection of wrongdoing without the possibility of determining the extent of its effects.”
Bolick also noted that the misconduct occurred over a long period of time.
“We know what other Tucson office workers, if any, were privy to the inappropriately obtained information,” he said. Therefore, he said, “it was at the discretion of the judicial process to disqualify the entire office.”