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Special counsel to investigate Montgomery ethics complaint

In this Aug. 25, 2014 file photo, Maricopa County Attorney Bill Montgomery speaks during a news conference in Phoenix. Hundreds of immigrants who have been denied bail under a strict Arizona law will now have the opportunity to be released after the U.S. Supreme Court issued a ruling Thursday, Nov. 13, 2014 in the closely watched case. The high court kept intact a lower-court ruling from three weeks ago that struck down the law, which was passed in 2006 amid a series of immigration crackdowns in Arizona over the past decade. Montgomery and Sehriff Joe Arpaio defended the law before the courts.(AP Photo/Ross D. Franklin, File)

In this Aug. 25, 2014 file photo, Maricopa County Attorney Bill Montgomery speaks during a news conference in Phoenix. Hundreds of immigrants who have been denied bail under a strict Arizona law will now have the opportunity to be released after the U.S. Supreme Court issued a ruling Thursday, Nov. 13, 2014 in the closely watched case. The high court kept intact a lower-court ruling from three weeks ago that struck down the law, which was passed in 2006 amid a series of immigration crackdowns in Arizona over the past decade. Montgomery and Sehriff Joe Arpaio defended the law before the courts.(AP Photo/Ross D. Franklin, File)

The Arizona Supreme Court has assigned a special outside counsel to investigate ethics complaints against newly appointed Justice Bill Montgomery and prosecutor Juan Martinez.

Chief Justice Robert Brutinel said in an administrative order issued September 26 that the Office of Independent Bar Counsel will handle complaints against Montgomery and Martinez because of the “interrelationship” of the charges both men face.

The investigation will be the first of its kind, in that a sitting Supreme Court justice will be investigated over a bar complaint.

Lawyers for Jodi Arias filed a complaint accusing Montgomery of covering up misconduct by Martinez one day before Gov. Doug Ducey appointed the controversial former Maricopa County attorney to the state’s highest court.

The court’s administrative order explains in what instances an independent counsel shall be called, typically because of some type of conflict-of-interest with the State Bar of Arizona, which typically investigates attorney complaints. In this case, it’s because the investigation will be into one of the Supreme Court’s own.

A court spokesperson said this special counsel will operate the same way that the State Bar would conduct an ethics investigation.

“[The independent bar counsel] will decide whether the charges are dismissed or move forward as a complaint to the PDJ’s [Presiding Disciplinary Judge] office,” court spokesman Aaron Nash said. “Takes the state bar out of the process but fulfills the same function.”

The counsel, Meredith Vivona, is an attorney who will handle both the investigation into Montgomery and Martinez. Vivona works for the Commission on Judicial Conduct and conducts investigations against judges who face ethics complaints.

Mark Harrison, former president of the State Bar of Arizona, said Vivona is very competent and will act “more objectively than the Bar.”

He said that Brutinel likely appointed her to conduct this investigation because of the political overtones that come along with the two attorneys out of the Maricopa County Attorney’s Office.

Montgomery, who has explicitly stated he has no intentions of making any “media comments,” told the Arizona Capitol Times through a court spokesman that he is going to let the investigation play out.

“The process in rule and procedure will follow its course,” the newest Supreme Court justice said.

But in an earlier statement before he was tapped by Ducey, Montgomery called the complaint against him “political.’’

The complaint filed earlier this month by attorney Karen Clark contends that Montgomery, as Maricopa County attorney, unethically covered up misconduct by Juan Martinez, who was his lead prosecutor, regarding Martinez’s activities in the murder trial of Jodi Arias.

Arias was sentenced to life behind bars after what had been a particularly high publicity and often lurid trial in which she was found guilty of the 2008 murder of sometime boyfriend Travis Alexander. He was shot in the head, had his throat slit, stabbed 27 times and left in the shower.

Her conviction is currently on appeal.

What led to this complaint against Montgomery was conduct by Martinez, both during the trial and elsewhere.

Clark charges that it was Montgomery’s legal obligation to supervise Martinez. She said he engaged in unethical conduct by blocking the release of records, including complaints by employees who claim they had been harassed by Martinez, records she said would have informed the public about his chief prosecutor’s actions.

There’s also the allegation that Montgomery authorized Martinez to write a book about the Arias trial before it ended, and do it during business hours when he was on the county payroll. And she said Montgomery gave access to case information to outsiders, including someone from the “Dr. Drew Show” on HLN.

Clark has filed a separate ethics complaint against Martinez. 

Clark’s complaint was filed as Montgomery was on the short list for Ducey to fill the vacancy on the Supreme Court created by the resignation of Scott Bales.

“Political agendas and special interests should not be allowed to have a place when it comes to the ethical responsibilities of a prosecutor,’’ Montgomery said in a written statement at the time. “I await a full and timely review of these inaccurate claims that have been previously reviewed and found to be without merit.’’

Ducey subsequently picked Montgomery on September 4 for the court, brushing aside the complaint and saying he found its timing “pretty suspicious.’’

Montgomery’s ethics investigation makes it two consecutively elected Maricopa County attorneys who have had charges brought upon them elevated to an outside counsel.

Andrew Thomas, who held the post from 2004 to 2010, was eventually disbarred – along with his chief deputy, Lisa Aubuchon – for abusing prosecutorial powers while trying to prosecute Maricopa County Board of Supervisors (and others) at the time. 

If Montgomery’s investigation warrants the worst possible outcome for him – a disbarment – he could eventually apply for reinstatement, which would go through the Arizona Supreme Court for approval. 

Harrison notes that this investigation will differ in nature from Thomas since Vivona’s position as an independent bar counsel did not exist in 2012 when Thomas’ law license was revoked. 

Instead, an outside counsel from Colorado was hired so Thomas could not argue the State Bar was being biased against him, Harrison said. 

Vivona was not immediately available for comment. But Robert Van Wyck, an attorney working opposite her in a case that’s going through an appeal, gave her high praise.

“I can tell you she’s very bright and capable and I think she is balanced,” Van Wyck said. “I would say that under any circumstances.” 

This news comes only one day after Martinez was reassigned to a new role within the Maricopa County Attorney’s Office. The acting county attorney, Rachel Mitchell, pulled Martinez off the capital litigation bureau and assigned him to the auto theft division. 

Mitchell is one of eight candidates hoping to be appointed the next top prosecutor in the country’s fourth largest county. That appointment is expected to be announced in early-October. 

Howard Fischer of Capitol Media Services contributed to this report. 

Editor’s note: This story has been revised to include additional information from Bill Montgormery, Karen Clark, Robert Van Wyck, Mark Harrison and pertinent background on the allegations against Montgomery.

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