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SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CR2008-161461-001 DT 10

VIEWS: 7 PAGES: 4

									                                                                         Michael K. Jeanes, Clerk of Court
                                                                           *** Electronically Filed ***
                                                                              10/23/2008 8:00 AM
                              SUPERIOR COURT OF ARIZONA
                                  MARICOPA COUNTY

CR2008-161461-001 DT                                                  10/20/2008


                                                              CLERK OF THE COURT
HON. BARBARA RODRIGUEZ MUNDELL                                     T. Melius
                                                                    Deputy



STATE OF ARIZONA                                     FRANK F COLLINS JR.

v.

JASON JOHN KELLER (001)                              KAMILLE RAE DEAN
                                                     JAY F BROWN

                                                     JUDGE BACA
                                                     JUDGE DONAHOE




                                       MINUTE ENTRY



        The court has received and reviewed the Motion for Change of Judge for Cause filed by
counsel for Jason John Keller (“Defendant”). The court has considered the legal memoranda, the
court’s file and the relevant law. The court finds as follows:

        Defendant seeks to have the entire Maricopa County Superior Court bench, 95 judges,
removed for cause for a variety of reasons. First, he alleges he cannot be judged fairly and
impartially by the judges before whom he has appeared as counsel defending clients with serious
crimes. Second, he alleges that a couple of judges have filed bar complaints against him with the
State Bar of Arizona. He further alleges another judge chastised him in open court, all of this
demonstrating that judges have negative views of Defendant. Lastly, he claims that Criminal
Presiding Judge Anna Baca, sua sponte interfered with all of Defendant’s attorney-client
relationships by ordering that he be removed as counsel of record from all Superior Court cases
and that his client files be turned over to Mr. James Logan of the Office of Public Defense
Service.

         Rule 10.1 of the Arizona Rules of Criminal Procedure and A.R.S. §12-409 provide that,
if a party alleges grounds for removal of a judge based upon cause, the matter shall be heard by
Docket Code 019                            Form G000A                                        Page 1
                              SUPERIOR COURT OF ARIZONA
                                  MARICOPA COUNTY

CR2008-161461-001 DT                                                  10/20/2008


another judge and the issue decided by a preponderance of the evidence. It is movant’s
responsibility to allege and prove interest or prejudice, and presiding judges are required to
grant a hearing only when defendant’s motion alleges facts which, if taken as true, would entitle
movant to relief. State v. Eastlack, 180 Ariz. 243, 255, 883 P.2d 999, 1011 (1994), cert. denied
115 S.Ct. 1978, 514 U.S. 1118, 1312 L. Ed. 2d 866 (1995).

        For purposes of this motion, the Court accepts as true Defendant’s allegations that he
appeared as counsel of record representing criminal defendants before judges of the Maricopa
County Superior Court; that a couple of judges filed bar complaints against him and he has been
chastised in open court; and that Judge Baca ordered that his criminal cases be reassigned to the
Office of Public Defense Service.

       This Court shall not grant a hearing on Defendant’s Motion for Change of Judge for
Cause because even if the facts alleged are true, Defendant would not be entitled to a change of
judge.

        “Judges are presumed to be impartial, and the party moving for change of judge must
prove a judge’s bias or prejudice by a preponderance of the evidence.” State v. Ellison, 213
Ariz. 116, 128, ¶ 37, 140 P.3d 899, 911 (2006), cert. denied 127 S.Ct. 506, 166 L. Ed. 2d 377
(2006) (capital murder defendant failed to show that judge who presided over co-defendant’s
trial was improperly biased); State v. Smith, 203 Ariz. 75, 79, 50 P.3d 825 (2002) (finding capital
murder defendant, who failed to provide evidence of actual bias, did not meet his burden of proof
under Rule 10.1). Overcoming this burden means proving “a hostile feeling or spirit of ill-will,
or undue friendship or favoritism, towards one of the litigants.” State v. Cropper, 205 Ariz. 181,
185, ¶ 22, 68 P.3d 407, 411 (2003) (quoting In re Guardianship of Styer, 24 Ariz. App. 148, 151,
536 P.2d 717 (1975)). A judge’s capacity for fairness and impartiality should only be questioned
on the basis of concrete facts and specific allegations; a judge should not be questioned on the
basis of “mere speculation, suspicion, apprehension or imagination.” State v. Rossi, 154 Ariz.
245, 248, 741 P.2d 1223, 1226 (1987).

        THE COURT FINDS that Defendant has not met his burden under Rule 10.1 of proving
that the entire Maricopa County Superior Court bench is actually biased or prejudiced against
him and should be removed. At best, the grounds cited by affiant amount to mere speculation,
suspicion or apprehension. There is no showing of actual bias or prejudice on any judge’s
behalf.

      Regarding the argument that Judge Baca interfered with the attorney-client relationship
between Defendant and his clients, the Court finds that this contention is specious, at best.
Defendant was attorney of record in 77 cases in Superior Court. One of these cases, CR2008-
161461-001, was scheduled to go to trial the week after Defendant’s arrest and incarceration.
Docket Code 019                            Form G000A                                      Page 2
                              SUPERIOR COURT OF ARIZONA
                                  MARICOPA COUNTY

CR2008-161461-001 DT                                                   10/20/2008


“[W]here the inability of retained counsel to serve gives promise of unreasonable delay or
inconvenience in completing the trial, the court may require the defendant to secure other
counsel.” United States v. Cicale, 691 F.2d 95, 106 (2nd Cir. 1982), cert. denied, 460 U.S. 1082
(1983) (quoting United State v. Bentvena, 319 F.2d 916, 936 (2nd Cir.1963), cert. denied, 375
U.S. 940 (1963)). The “right to choose one’s own counsel is circumscribed in several important
respects,” Wheat v. United States, 486 U.S. 153, 159 (1988), and “must at times give way to the
need for the fair and efficient administration of justice,” Cicale, 691 F.2d at 106. In U.S. v.
Locascio, 6 F.3d 924 (2nd Cir. 1993), the Court stated, “Courts have also considered
disqualification where the chosen counsel is implicated in the allegations against the accused and
could become an unsworn witness for the accused, see United States v. Arrington, 867 F.2d 122,
129 (2d Cir.), cert. denied, 493 U.S. 817, 110 S.Ct. 70, 107 L.Ed.2d 37 (1989); United States v.
Kwang Fu Peng, 766 F.2d 82, 87 (2d Cir.1985), or where the chosen counsel is somehow unable
to serve without unreasonable delay or inconvenience in completing the trial, see United States v.
Scopo, 861 F.2d 339, 344 (2d Cir. 1988), cert. denied, 490 U.S. 1048, 109 S.Ct. 1957, 104
L.Ed.2d 426 (1989).” Locascio, 6 F.3d at 931.

         The circumstances in this case are very unique in that Defendant finds himself in the
exact situation of his clients when he represented them. In addition, Defendant stands accused of
conspiring with at least one of his now former clients. While no Arizona courts have addressed
these issues, the Ninth Circuit has held that trial courts presented with a conflict of interest of
defense counsel have an affirmative duty to protect defendant’s rights. Lockhart v. Terhune, 250
F.3d 1223, 1229 (9th Cir. 2001). In addition, the New Jersey Supreme Court has stated when
counsel “’is the subject of an ongoing investigation or has some other special relationship with
the prosecution that might lead counsel to place that relationship above the best interests of his
client[,] [m]uch can be said for adopting in such cases…a standard of per se ineffectiveness.’ 3
LaFave, Criminal Procedure § 11.9(d), at 939-40 (3d ed. 2007); see also id. § 11.9(d), at 918 &
nn. 174-75 (noting that some state courts have recognized per se conflicts). Without such a
standard, ’the issue becomes whether counsel could have done more than he or she did, which
seems always to be the case.’ Id. § 11.9(d), at 940.” State v. Cottle, 194 N.J. 449, 476, 946 A.2d
550, 564 (2008).

        THE COURT FINDS that Defendant has not met his burden under Rule 10.1 of proving
that Judge Baca interfered with the attorney-client relationship.

       THE COURT FURTHER FINDS that the Code of Judicial Conduct does not require the
removal of the entire Maricopa County Superior Court bench. Pursuant to this Code, a judge
must disqualify himself if his “impartiality might reasonably be questioned” for reasons such as
“personal knowledge of disputed evidentiary facts” or “personal bias or prejudice.”
Ariz.R.Sup.Ct. 81, Canon 3(E)(1)(a). The Defendant does not contend that any judge has any
personal knowledge of the case. Further, defense counsel has not shown any evidence of actual
Docket Code 019                            Form G000A                                       Page 3
                             SUPERIOR COURT OF ARIZONA
                                 MARICOPA COUNTY

CR2008-161461-001 DT                                                10/20/2008


bias or prejudice by any judge. See Smith, 203 Ariz. at 79-80 (appearance of impropriety not
found where judge presided over capital murder defendant’s sentencing (at time when judge
rather than jury decided sentence) and victim’s son and daughter-in-law were longtime
employees of court and had limited professional relationship with judge); State v. McMurtrey,
151 Ariz. 105, 107-08, 726 P.2d 202 (1986) (finding nothing “inherently unreasonable” in judge
presiding over third resentencing after having sentenced defendant twice to death “absent
specific evidence that the judge was actually biased or prejudiced against him”).

       IT IS THEREFORE ORDERED denying the Defendant’s Motion for Change of Judge
for Cause.

       IT IS FURTHER ORDERED remanding this matter to Judge Donahoe for all further
proceedings.




Docket Code 019                          Form G000A                                     Page 4

								
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