We write with good news. In a case we’ve covered for many years, sometimes pessimistically, the Arizona Supreme Court has taken strong action against prosecutorial misconduct. Recently, the court affirmed the removal of the entire Tucson office of the Arizona Attorney General from the state’s prosecution of Darren Goldin, due to shocking prosecutorial misconduct at his original 2010 trial. All six active justices agreed that the actual misconduct of former Assistant Attorney General Richard Wintory during Goldin’s capital trial created “an appearance of impropriety” sufficient to mandate the disqualification of every lawyer in the Tucson branch of Arizona Attorney General Mark Brnovich’s office.
Ultimately, the justices agreed with the trial court’s initial finding of misconduct, writing, “As the trial court concluded, “I’m sure there’s a more eloquent way of putting this, but it just looks bad.””
The misconduct was outrageous. In preparation for a trial with Goldin’s life on the line, Wintory participated in secret, inappropriate phone calls with the lead court-appointed mitigation expert, a professional who was integral to the defense and was ethically obligated to work exclusively on behalf of Goldin’s legal representation. This is so offensive, not least because the expert was tasked with identifying and locating Goldin’s biological mother, in order to help his attorneys develop mitigating factors that could potentially move the jury to spare his life. Presumably, Wintory did so to obtain privileged information about the case. Wintory waited a week after his first improper conversation with the expert to disclose the contact, and he did so by submitting a dishonest affidavit, in which he stated that he and the mitigation specialist only spoke once. However, records exist for at least seven calls. Additionally, Wintory falsely denied the presence on the calls of any additional staff members from the Tucson AG’s office, but later admitted in a subsequent affidavit that he had forgotten that his paralegal was also present during one of these calls.
More on that from a 2013 Open File post about Wintory’s misconduct on the case:
Wintory’s supervisor, Kim Ortiz, ultimately forced Wintory to get off the case – but not before allegedly asking his senior paralegal to amend an affidavit she had written supporting Wintory’s version of events to “make a statement that fit the ‘evidence’ that [Ortiz] had gathered,” the paralegal told the Daily Star. The paralegal said she was fired an hour after refusing to amend the affidavit. She subsequently filed a bar complaint against Ortiz in the matter. Last week the Arizona State Bar declined to hear the complaint, characterizing it as an employment dispute.
After the unethical contact was unearthed, Wintory was removed from the case and suspended from practicing law in Arizona for 90 days. Subsequently, he was also suspended from practicing in Oklahoma for two years originating from the same misconduct. The Tucson AG’s Office ended up dropping the death penalty and offered Goldin a plea of 11 years, which he accepted. When Goldin later succeeded on an ineffective assistance of counsel argument, the plea was withdrawn and the charges reinstated, except for the death penalty. Facing re-trial, Goldin filed a motion that anyone from the Tucson prosecutor’s office should be disqualified from prosecuting him, and that another prosecutor’s office must be assigned the job instead. The trial court granted Goldin’s motion to remove the entire office, agreeing that it was impossible to know the extent of the information shared between Wintory and the intermediary, or the degree to which the unethically acquired information continues be a part of the prosecution’s case.
Goldin’s case wasn’t the first judicial finding of misconduct against Wintory. In 2006, the Court of Criminal Appeals of Oklahoma reversed a death sentence due to Wintory’s “serious and potentially prejudicial misconduct” in Alfred Brian Mitchell v. the State of Oklahoma. The Court wrote:
We conclude that the manner in which the prosecutor presented his closing argument—yelling and pointing at the defendant as he addressed him directly—was highly improper and potentially prejudicial. There can be little doubt that the content and presentation of this closing argument was carefully calculated to inflame the passions and prejudices of Mitchell’s jury. The prosecutor’s conduct allowed him—perhaps more forcefully than words alone could do— to express the utter contempt and disdain that he personally felt toward the defendant and his crime. This Court concludes that prosecutors should not be allowed to do through their actions and demeanor what we have expressly forbidden them to do with their words, namely, assert their personal opinion about the defendant or the crime. While we continue to recognize the “liberal freedom of speech” that is appropriate to closing argument, we also recognize that this freedom, like most, remains constrained by the rights of others, including the right to due process and to a reliable capital sentencing.
Wintory’s misconduct doesn’t stop there. In yet another case, Bigler Jobe Stouffer v. the State of Oklahoma, the Court of Criminal Appeals of Oklahoma described Wintory’s misconduct as “extremely improper”. Despite this finding of misconduct, the Court took a position courts across the country sadly often take when it comes to misconduct: that if the court decides the misconduct did not affect the outcome of the trial, then the misconduct isn’t grounds for a reversal. Multiple findings of misconduct, in multiple jurisdictions, against one prosecutor begs the question: Why is this person still able to get work as a prosecutor?
This is why what happened in Goldin’s case is so noteworthy. It’s unusual for any prosecutorial misconduct, which is furtive and secretive by nature, to be exposed, in any case. What’s so rare about Goldin’s case is that the misconduct was discovered during trial and addressed in real time when the trial court judge held the prosecutor and the office accountable. Here at The Open File, because of the nature of prosecutorial misconduct, we frequently write about the abuse and wrongdoing many years after it happened, and, usually, only after dogged work by the defense to uncover it. Even then, when absolutely forced to concede that misconduct occurred, courts often dismiss or downplay the impact of prosecutorial misconduct on criminal case outcomes. That’s what happened when the trial court’s decision was overturned on appeal.
Wonderfully, though, that kind of avoidance and minimalizing did not happen in this case once it got to the Arizona Supreme Court. First, the court explicitly acknowledged that the true scope of misconduct in Goldin’s case is not known, writing:
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.
Secondly, the court admitted that the need to disqualify an entire office of prosecutors is not an anomaly or outlier situation, but is something that will come up again, stating:
We granted review because the question of vicarious disqualification of a prosecutor’s office is of statewide importance and likely to recur.
As encouraging as this is, what’s not so encouraging in this case is seeing that Wintory’s reprehensible misconduct was vigorously defended by his former office, the highest legal office of the state. The brief, which bears the names of Arizona Attorney General Brnovich, Solicitor General Brunn Roysden, as well as other attorneys for the city of Tucson and the state of Arizona, was crafted and argued on the taxpayers’ dime.
A ruling like this from the Arizona Supreme Court may be appealed by the state, but it’s heartening to see a higher court recognize the full implications of prosecutorial misconduct. The court’s decision affirms that prosecutorial misconduct is not only about an individual actor or ‘bad apple’ who may have committed the misconduct, but that it exists in a tainted system which incentives and/or allows it. The systemic deficit of integrity that characterizes some prosecution offices is much more entrenched, self-perpetuating, and difficult to correct than the “rogue” actor. Dismissing an entire office, when merited, sends a clear and helpful message on this issue. There’s a lot to be encouraged by here. We’ll continue to follow Goldin’s case and Wintory’s activities, and will report back as new developments occur.
