In re Martinez

• Decision Date: 30 April 2020
• Docket Number: No. SB-17-0081-AP,SB-17-0081-AP
• Parties: In the MATTER OF a Member of the State Bar of Arizona, Juan M. MARTINEZ, Attorney No. 9510, Respondent.
• Court: Arizona Supreme Court

248 Ariz. 458

462 P.3d 36

In the MATTER OF a Member of the State Bar of Arizona, Juan M. MARTINEZ, Attorney No. 9510, Respondent.

No. SB-17-0081-AP

Supreme Court of Arizona.

Filed April 30, 2020

J. Scott Rhodes, Kerry Hodges, Jennings, Strouss & Salmon P.L.C., Phoenix, Attorneys for Juan M. Martinez

Craig D. Henley, Senior Bar Counsel, State Bar of Arizona, Phoenix, Attorney for State Bar of Arizona

Mikel Steinfeld, Phoenix; and James J. Belanger, J. Belanger Law PLLC, Tempe, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

Jared G. Keenan, American Civil Liberties Union Foundation of Arizona, Phoenix, Attorney for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Arizona

Timothy J. Agan, Lindsay Herf, Arizona Justice Project, Phoenix, Attorneys for Amicus Curiae Arizona Justice Project

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, JUSTICES BOLICK, GOULD, and BEENE joined.^*

JUSTICE LOPEZ, Opinion of the Court:

¶1 We consider whether prosecutor Juan M. Martinez's conduct, characterized in five Arizona appellate court decisions as "prosecutorial misconduct" that did not rise to the level requiring reversal of criminal convictions, violates attorney ethical rules. We affirm the disciplinary hearing panel's ("the panel") determination that Martinez did not violate Supreme Court Rule 41(g) and Arizona Rule of Professional Conduct ("ER") 4.4(a). We conclude, however, that Martinez violated ER 8.4(d) and we impose the State Bar's ("the Bar") requested sanction of reprimand.

BACKGROUND

¶2 Martinez was licensed to practice law in Arizona in 1984. He has served as a prosecutor at the Maricopa County Attorney's Office since 1988. On September 28, 2016, following the Bar's investigation of Martinez's conduct as a prosecutor in five capital murder prosecutions spanning nearly ten years, the Attorney Discipline Probable Cause Committee ("the Committee") found that probable cause existed that Martinez violated Rule 41(g) and ERs 4.4(a) and 8.4(d). The Committee issued an Order of Admonition and Probation requiring Martinez to complete nine hours of continuing legal education and professionalism courses and to pay costs. Martinez objected to the order and demanded formal proceedings.

¶3 The Bar filed a formal disciplinary complaint against Martinez and the matter proceeded to a hearing. At the September 12, 2017, hearing, the Bar called four witnesses, including expert Paul Charlton, and Martinez called one witness, expert Thomas Zlaket. Martinez did not testify. Following the hearing and a brief recess, the panel dismissed the complaint. On November 27, 2017, the panel issued a decision and order dismissing the complaint with prejudice. The panel held, in sum, that the Bar had failed to prove by clear and convincing evidence that Martinez violated any ethical rule.

¶4 The Bar appealed the panel's order. On January 18, 2018, this Court remanded the case to the panel to make supplemental findings of fact and conclusions of law. On September 21, 2018, the panel made these findings, again holding that the Bar failed to prove Martinez violated any ethical rule.

¶5 We have jurisdiction pursuant to Article 3 and Article 6, Sections 1, 5(3), and 5(4) of the Arizona Constitution.

DISCUSSION

I. Standard of Review

¶6 The Bar must prove allegations of misconduct by clear and convincing evidence, Ariz. R. Sup. Ct. 58(j)(3), which are proven by showing it was "highly probable" that the allegations are true. In re Alexander , 232 Ariz. 1, 5 ¶ 11, 300 P.3d 536, 540 (2013). We review the panel's conclusions of law de novo and its findings of fact by a clearly erroneous standard. Id. ; Ariz. R. Sup. Ct. 59(j). "Findings are clearly erroneous if they are not supported by reasonable evidence." In re Alexander , 232 Ariz. at 5 ¶ 11, 300 P.3d at 540.

II. Special Duties of a Prosecutor

¶7 The panel began its supplemental findings and conclusions by stating, "This is a case involving a prosecutor whose job it is to seek executions and a prosecution of him that was not well executed." This statement mischaracterizes the role of a prosecutor. We could not disagree more strongly with the first part of this statement. The role of a prosecutor is not to seek convictions and sentences but rather to seek justice:

[T]he prosecutor is not the representative of an ordinary litigant; he is a representative of a government whose obligation to govern fairly is as important as its obligation to govern at all. The prosecutor's interest in a criminal prosecution "is not that it shall win a case, but that justice shall be done." Thus, "while he may strike hard blows, he is not at liberty to strike foul ones." It is the prosecutor's duty to refrain from improper methods calculated to produce a wrongful conviction just as it is his duty to use all proper methods to bring about a just conviction.

Pool v. Superior Court , 139 Ariz. 98, 103, 677 P.2d 261, 266 (1984) (quoting Berger v. United States , 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) ).

¶8 Prosecutors’ unique role in the justice system is recognized in ER 3.8, "Special Responsibilities of a Prosecutor," which states that "[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate," and has the duty to "see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons." See also In re Peasley , 208 Ariz. 27, 35 ¶ 34, 90 P.3d 764, 772 (2004) (noting that "courts generally recognize that the ethical rules impose high ethical standards on prosecutors"). Thus, prosecutors must act as "ministers of justice and exercise professionalism even in the heat of trial." State v. Hulsey , 243 Ariz. 367, 394 ¶ 123, 408 P.3d 408, 435 (2018).

III. The Cases

¶9 The Bar alleges that Martinez violated ethical rules by committing prosecutorial misconduct in the following five capital murder cases:

A. State v. Morris

¶10 Martinez prosecuted the defendant in 2005 for murdering five women. Following conviction, Morris was sentenced to death. On direct appeal, this Court reviewed Martinez's remarks on the "putrid" odor of one victim's jacket—offered by Martinez to the jury for its "smelling pleasure"—and concluded that they were "inappropriate," but not misconduct. State v. Morris , 215 Ariz. 324, 338 ¶¶ 62–64, 160 P.3d 203, 217 (2007).

¶11 We also reviewed Martinez's interaction with the jury during argument, including his singling out members of the jury based on their appearance and gender and addressing them personally. Id. at 337–38 ¶¶ 57–61, 160 P.3d at 216–17. For example, Martinez queried:

[W]hich one of you wants to volunteer? I want a show of hands on this one. Which one of you ladies—and we don't need guys on this one, because he didn't take guys. He only took women.

Which one of you want [sic] to volunteer to come sit here and have the defendant sit himself on your chest and say, Oh, that didn't hurt? Because the defense attorney is saying throw common sense out of [the] window. Which one? I challenge anybody to say, That is something I want to do.

And anyway, and on top of that, while he's sitting on my chest, which one of you, since the one lower left-hand side has the longer hair of the jurors, maybe she wants to have him grab her hair while he's sitting on her chest ... to grab it and pull it around her neck.

You think that's not going to hurt? You think one of you guys is going to volunteer for that? You can't leave your common sense aside. [Defense counsel] wants you to because he makes these arguments and says, well, we don't know what is in their heads. We don't know what is in Juror Number 1's head. Can you tell me you don't think it's not going to hurt when he sits on you?

Hey, Juror Number 1 or Juror Number 14, whatever it is, what if we put [the] Winnie the Pooh tie around your neck? Are you going to enjoy that? Are you going to like it? Going to feel real good when you can't breathe?

Id. at 337 ¶ 58 n.6, 160 P.3d at 216 n.6. We concluded that Martinez's comments constituted misconduct because he impermissibly inflamed the jury's sympathy for the victims and exploited its fear of the defendant. Id. ¶ 58.

B. State v. Beemon

¶12 Martinez prosecuted the defendant for murder. Beemon testified during the guilt phase of his trial, admitting a 1997 drug conviction without mentioning a 1984 robbery conviction that the trial court had ruled inadmissible during that phase. State v. Beemon , 1 CA-CR-05-1161, at 16 ¶ 23 (Ariz. App. Feb. 21, 2008), https://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2008/1%20CA-CR%2005-1161-82958.PDF.

¶13 During the aggravation phase opening statement and closing argument, Martinez "attacked" Beemon for his "dishonesty" in failing to reveal his 1984 robbery conviction during his guilt-phase testimony. Id. at 17 ¶ 27. Martinez also insisted at a bench conference during the aggravation phase that the defendant had no right to "withhold information" from the jury regarding the robbery conviction. Id. at 17–18 ¶ 27. The court of appeals concluded that Martinez's remarks were "clearly improper" because the trial court had precluded mention of the 1984 conviction. Id.

¶14 The court of appeals also described Martinez's characterization of defense counsel's argument in the aggravation phase as "reprehensible" and "both improper and unprofessional," notwithstanding the "apparent vigor of defense counsel's argument." Id. at 18–22 ¶¶ 28–32. There, Martinez repeatedly analogized defense counsel's argument to Hitlerian propaganda tactics—the "big lie"—in an attempt to rebut the defense's claim that Martinez was misleading the jury. Id. The court of appeals affirmed Beemon's conviction and sentence, finding that reversal for prosecutorial misconduct was unwarranted, but instructed the court's clerk to forward a copy of its...