Sellers v. Superior Court of State In and For Maricopa County
| Decision Date | 11 August 1987 |
| Docket Number | CA-SA,No. 1,1 |
| Citation | 154 Ariz. 281,742 P.2d 292 |
| Parties | Jon SELLERS, Michael Butler, Andrew Watzek, Glen Sparks, Brian Miller, Allen McKenzie, Edwin Anthony, Jerry Kimmel, Harry Hawkins, and City of Phoenix, Petitioners, v. SUPERIOR COURT OF the STATE of Arizona, In and For the COUNTY OF MARICOPA, Honorable Robert A. Hertzberg, a judge thereof, Respondent Judge. Max Anderson DUNLAP, Real Party in Interest. 147. |
| Court | Arizona Court of Appeals |
In the tenth week of a bitter trial, which promised to run months longer, a controversy erupted that ended the trial and concluded in the disqualification of the law firm for the eleven defendants. Under questioning by plaintiff's counsel, defendant Jack Weaver testified that his attorneys had shown him certain documents in their offices days before. Plaintiff's counsel sought the documents. Defense counsel denied having them or showing them to Weaver. Three days of hearing followed, in which defense counsel urged and reurged that a mistrial be declared because of the conflict they now faced with Weaver. Plaintiff's counsel expanded the argument to place in question the ethical propriety of the representation of all defendants by a single firm. By the third day all parties agreed, though for different reasons, that a mistrial must be granted. On the third day of hearing, when plaintiff's counsel joined the motion for mistrial, he added the oral motion that counsel for defendants be disqualified from representing any of the defendants in a future trial. Over defendants' objection that a ruling on the second motion was premature and should await further briefing and a hearing, the trial court granted both the mistrial and the motion to disqualify.
The defendants other than Weaver now petition for review of the order of disqualification; they wish to retain their present counsel. Weaver, represented by separate counsel, advises this court by affidavit that he has no objection to his former counsel representing all of his co-defendants and that he "waives unconditionally" any conflicts arising from his former representation. The attorney-client relationship at issue has spanned five years in a case of unusual complexity. To replace counsel now would be extremely costly and disruptive to the parties and the court. We do not presently decide whether or to what extent an order of disqualification is unavoidable. However, because it appears that disqualification was prematurely ordered and because the moving defendants have no remedy by appeal, we take jurisdiction. See Rule 8, Arizona Rules of Procedure for Special Actions. Alexander v. Superior Ct., 141 Ariz. 157, 685 P.2d 1309 (1984).
Max Dunlap was tried, convicted, and sentenced to death for the 1976 murder of Arizona Republic reporter Don Bolles. Dunlap's conviction was reversed in State v. Dunlap, 125 Ariz. 104, 608 P.2d 41 (1980). Charges against him were thereafter dismissed without prejudice and have not been refiled.
In July 1982 Dunlap filed a lawsuit charging the City of Phoenix and twenty-two of its policemen with fraudulent concealment, fraudulent misrepresentation, and conspiracy. Dunlap sought both compensatory and punitive damages. He alleged that the individual defendants, acting within the course and scope of their city employment, deliberately concealed information that would have assisted Dunlap's defense against the Bolles murder charges. Among the alleged objects of concealment were certain index cards leading to the police intelligence files on Kemper Marley, John Harvey Adamson, Mary Adamson, and the Emprise Corporation.
All defendants retained the former law firm of Jones, Teilborg, Sanders, Haga & Parks to represent them. When that firm divided, the newly constituted firm of Jones, Skelton & Hochuli retained their case. The defendants recognized and discussed with counsel at the outset that there were numerous testimonial conflicts among them. Though they agreed that the police intelligence files were purged of certain documents, they disagreed over such matters as who took what purgative steps and upon whose orders. As an example, Weaver claims that he took purgative actions and directed defendant Hawkins to take purgative actions upon the order of Weaver's superior, defendant Sparks. Sparks denies giving Weaver such an order. Despite such conflicts defendants agreed to proceed with a unified defense by common counsel, 1 and despite such conflicts the Jones firm agreed to present the defense. The thrust of the defense was that files were purged for legitimate law enforcement reasons with no harm intended or done to Max Dunlap. 2
The case proceeded to trial on January 7, 1987, against the City of Phoenix and ten police officers. The trial court had granted motions for summary judgment in favor of the other ten defendants. Chief trial counsel for plaintiff was Murray Miller, assisted by Deborah Cole-Williams. Chief trial counsel for the defendants was A. Melvin McDonald, assisted by Georgia A. Staton.
On March 10, 1987, defendant Jack Weaver underwent examination by attorney Miller. As Miller questioned him about the missing index cards, Weaver testified that he had recently seen the original Mary Adamson index card at his lawyers' office, though the original was supposedly long lost. He also said that he had seen the original Kemper Marley index card, which varied in certain details from the purported Marley card that had been made a trial exhibit. Miller turned to McDonald in open court and demanded the cards. What the trial court characterized as "a shouting match" ensued. McDonald moved for a mistrial at the bench, arguing that Miller had impugned his credibility before the jury to the detriment of all defendants. The court denied the motion, but offered McDonald the opportunity to take the witness stand to address the suggestion that he had secreted missing cards. McDonald volunteered that it would be "ethically impossible" for him to testify in contradiction of his client Weaver. The court instructed the jury to disregard the exchange of comments between counsel and permitted Miller to continue Weaver's examination.
At the next recess McDonald renewed his motion for mistrial in chambers. Defendant Weaver, who was present, alluded to his testimonial conflict with defendant Sparks:
I have a question as to how [McDonald] can defend me, who says one thing, defends Sparks, who's opposed to me. I would just like it on record that I am uncomfortable with the situation but I am willing to proceed to get this thing over with.
The focus of discussion was not the testimonial conflict among defendants, however, but the conflict between Weaver and McDonald over the question whether Weaver had seen original index cards for Mary Adamson and Kemper Marley in McDonald's office. McDonald stated:
The problem I have got, Judge, I have got nine other clients that now that my integrity has been placed in issue by Mr. Miller's comments in the courtroom in defending my other nine clients, I think I have got the duty to go on and explain to the jury what happened, because this is a case involving alleged cover-ups and it's impossible for me, I think, in representing my other nine clients to have this jury believe that their attorney is part of any cover up, which I am not....
To do that, that places me in a position of impeaching my own client, Jack Weaver, wherein lies the conflict and that's why I think as much as I dread it, there would have to be a mistrial.
In response to McDonald's claim that an untenable conflict with Weaver had arisen, Miller argued that McDonald and his predecessors on the case should have recognized an untenable conflict among defendants from the start. Miller was not yet arguing for disqualification, however; rather he opposed McDonald's motion for mistrial, taking the position that the present emergence of a conflict which defendants had chosen to ignore should not cause plaintiff the delay and cost of a mistrial.
The trial judge made a determined effort to avoid mistrial by avoiding the necessity of McDonald's testimony before the jury. He took McDonald's testimony in chambers, where he permitted Miller to cross-examine, and he concluded that McDonald did not have and had not shown Weaver the allegedly missing cards. He announced this conclusion to the jury and restricted Miller's effort to question Weaver further about missing cards at the Jones firm office. As proceedings ended on Tuesday, March 10, McDonald's motion for mistrial was denied. However, the court gave McDonald leave to renew the subject after consulting with the defendants other than Weaver. The court also suggested that Weaver consult his independent advisory counsel, Donald Harris, about whether he should continue to be represented by McDonald in light of the conflict that had developed between them.
On Wednesday, March 11, McDonald renewed his motion for mistrial, joined by Donald Harris on behalf of Weaver, and supported by attorney Michael Scott, whom McDonald had engaged to consult independently with the defendants other than Weaver.
Harris told the court that the conflict exposed to date was just "the tip of the iceberg." He concluded:
At this point in time, I feel, sir, that the firm can no longer, the firm of Jones, Skelton, Hochuli, represent Jack Weaver.
I also state at this time, just so down the road it doesn't come as a surprise, I think if that conflict is apparent, the Court recognizes it and then ultimately decides that there is a conflict that must be resolved by a mistrial, that in futuro there could be no further representation by this law firm as to any of the...
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