A legal effort to stop a Maricopa County Superior Court judge from hearing cases presented by deputies of the county prosecutor will not be moved to another county, according to an Oct. 10 ruling.
Maricopa County Superior Court Presiding Judge Barbara Rodriguez Mundell refused Maricopa County Attorney Andrew Thomas’ request to allow an out-of-county judge to consider whether Judge Timothy Ryan should be prevented from handling cases brought by Thomas’ office.
Earlier this month, Thomas accused Ryan of “questionable rulings” and unfair treatment toward deputy prosecutors. The public condemnation of Ryan stirred the interest of the State Bar of Arizona, whose president confirmed an ethics complaint has been filed against Thomas.
Mundell’s ruling states that Thomas’ motion for change of judge amounts to a “blanket disqualification” of Ryan that is not supported by facts demonstrating bias or prejudice against Thomas held by the judge — or any other of the county’s 93 Superior Court judges.
“…Sending the case to another county would result in unnecessary delay for the many victims, witnesses and defendants in all of those cases,” wrote Mundell. “The motion for change of judge should be transferred out of county only when it is shown that no judge in Maricopa County can ethically handle the matter.”
Prompted by the criticism of Ryan, the State Bar of Arizona issued a press release Oct. 5 announcing it “opposes attacks on the judiciary,” and directly suggests the “right way” to challenge judges’ actions is “through the appellate courts or the Commission on Judicial Conduct — not through the media.”
The request to have Ryan removed from cases handled by his office was bundled into the prosecution of an accused human smuggler. Following Thomas’ announcement of his intention, Bob McWhirter, a public defense attorney representing the defendant, said he would consider filing an ethics complaint against the county attorney.
But the complaint did not originate from McWhirter. Dan McAuliffe, the State Bar president, said the complaint and an investigation were generated by the State Bar.
Without further legal action, McAuliffe said he could not comment further on the complaint and could not speculate what, if any, sanctions against Thomas could arise.
Barnett Lotstein, a spokesman for Thomas, said the ensuing Bar complaint and Mundell’s decision did not represent a setback for the Maricopa County Attorney’s Office. The request to prevent Ryan from hearing cases handled by Thomas’ office was not meant to imply the county’s entire Superior Court bench was incapable of being impartial.
“We weren’t implying that every judge couldn’t be neutral,” he said. “What we were saying is you have to avoid even the appearance of non-neutrality. There’s precedent for out-of-county judges and we felt that was appropriate. Judge Mundell obviously disagreed.”
He refrained from commenting on the ethics complaint, and also questioned its existence because the County Attorney’s Office has not received a copy or had calls to the Bar association returned. But Lotstein did defend the decision to publicly single out Ryan, the Maricopa County Superior Court associate presiding criminal judge.
“In our judgment we haven’t done anything at all in violation of any rules of ethical procedures,” said Lotstein. “Mr. Thomas and our lawyers have the First Amendment right to express their opinion and judges aren’t above criticism. When and if we receive the notice of it we’ll respond.”
Much of Thomas’ criticism of Ryan stems from the implementation of Prop. 100, a 2006 ballot initiative that forbids the setting of bond for illegal immigrants accused of serious felonies. Thomas’ press release package included six instances in May where Ryan either set bond for alleged illegal immigrants or released the defendants to the supervision of Pretrial Services.
McWhirter, who regularly handles such cases, said the County Attorney’s Office has attacked Ryan instead of admitting their inability to prove the defendants were in the country illegally.
Before Prop. 100 statute changes made in July, proving a defendant’s illegal presence in the country was legally difficult, he said.
The changes signed into law lowered the burden of proof necessary to prove a defendant was an illegal immigrant from proof evident presumption great to probable cause.
“It’s deceptively difficult,” said McWhirter. “How would you prove that you’re a citizen? Proving somebody is an alien is difficult.”
Arizona Capitol Times intern Marette Mendoza contributed to this article.