Judge, MCAO prosecutors kept job talks secret

PHOENIX — On Nov. 15, 2019, Maricopa County Superior Court Judge Erin Otis kept a secret.

This was a sentencing hearing for a man convicted of first degree murder.

But what the defense attorneys in the case didn’t know: Otis had been seeking and negotiating a job with the county attorney’s office to become a prosecutor for weeks — possibly longer.

The emails show the judge was in contact with top MCAO officials, including County Attorney Allister Adel, Chief Deputy Ken Vick and Division Chief Rachel Mitchell.

It’s an astonishing conflict and lack of disclosure, according to legal ethics experts.

“If you are afraid of being impartial and fair, how difficult it would be to be fair if your potential employer is right there in front of you,” said Charles Geyh, professor of law at the University of Maurer School of Law. Indiana.

ABC15 uncovered multiple conflicts in murder prosecutions due to the failure of Otis and MCAO officials to effectively screen and disclose conflicts before and after he was hired.

After Otis was hired in early 2020 as a prosecutor, the office assigned her to two landmark cases in which she served as a judge.

The disputes cost taxpayers more than $58,000 in outside legal fees after defense attorneys filed motions to disqualify.

HERNANDEZ CASE

In November 2019, Otis convicted Victor Hernandez, who had been convicted by a jury of first-degree murder months earlier.

She also ruled on other important motions in the months between the trial and the sentencing hearing, according to court records.

ABC15 has obtained several messages between Otis and MCAO officials in the weeks leading up to sentencing that show the judge seeking employment as a prosecutor.

The emails show Otis had repeated contact with senior executives via email, phone and text.

Some of Otis’ posts and office calendar entries also list dates for lunch with Rachel Mitchell and other MCAO employees in 2019.

The timing is notable as an ABC15 investigation found Otis was investigated for miscarriage of justice in mid-2019.

A courtroom clerk reported that Otis and his staff traded cruel and obscene jokes and memes to mock people in court during hearings and trials.

In her final six months as a judge, Otis was transferred from criminal cases to preside over family court cases. But she was upheld in the Hernandez case.

Hernandez’s defense attorneys declined to comment.

But ABC15 has learned that the conflict will likely be raised in future appeals by Hernandez and seeking post-conviction relief.

“It’s a real problem,” said Ben Edwards, a law professor at UNLV. “It’s not something we would expect of judges and something that codes of ethics prohibit.”

Experts said the failure of Otis and MCAO to declare a conflict and notify the defense team is troubling.

“At the absolute minimum, if you’re not going to disqualify yourself, you have a duty to disclose to everyone in the courtroom, saying ‘Listen, I’m negotiating a job here and if you want you move for my disqualification, do it,” Geyh said.

So far, MCAO officials and Otis have declined to be interviewed for ABC15’s “(dis)Honorable” investigation.

Here is the MCAO’s written response to the Hernandez case.

MASON AND ENGLISH CASES

Before becoming a judge, Erin Otis was a Maricopa County prosecutor, specializing in sex crimes cases. She joined the bench as a commissioner in 2012 and was appointed as a judge in 2016.

When she joined the MCAO in 2020, the office assigned her to the Capital Unit, which prosecutes death penalty and murder cases.

Defense attorneys in State v. Mason were the first to file a motion for disqualification.

Mason’s attorneys discovered that Otis previously presided over a settlement conference and plea change hearing for a co-defendant in the case.

To challenge the disqualification, MCAO engaged outside attorneys from Sanders and Park. [One of the attorneys, Artie Eaves, served on County Attorney Allister Adel’s transition team.]

The company received more than $32,000 in the Mason case.

In months of litigation, MCAO gave up trying to keep Otis and his prosecutors on the case.

After the judge ordered an arraignment hearing to learn more about the potential conflicts, the county attorney’s office filed a notice to transfer the charge to the Pinal County attorney’s office.

One of the witnesses scheduled to testify was Kelly Shafer.

She’s the former courtroom clerk whose response from the Arizona Commission on Judicial Ethics opened an investigation into Otis.

In MCAO’s notice to transfer the case, outside county attorneys continued to deny any wrongdoing.

“The state contends that the defendant’s allegations are baseless, unnecessarily inflammatory and hyperbolic,” according to the notice.

A separate defendant who represented himself, Josiah English, also successfully had Otis disqualified.

Court records show Otis played a role in the grand jury proceedings when English was indicted.

Law firm Sanders and Park was also retained to challenge the motion for disqualification in English. The company was paid $25,000 in the case, according to invoices.

On the stand at a witness hearing in November 2021, Otis said her role was administrative and she had no knowledge of the underlying facts of the case.

But a judge ruled his court involvement was still a problem.

“The possibility of public suspicion now outweighs any benefits that might accrue from his continued representation of the state in this case,” Judge Frank W. Moskowitz wrote.

In a January 30, 2020 letter officially offering Otis a job, the MCAO instructed the former judge to prepare a memorandum detailing any potential conflicts.

MCAO policies also clearly state that newly hired attorneys must immediately provide a list of conflicts. The policies also require “every MCAO employee” to report potential conflicts of interest.

In response to questions about the representation of MCAO by the law firm Sanders and Park, the office released the following statement.

Contact ABC15 investigator Dave Biscobing at Dave@ABC15.com.

About Jessica J. Bass

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