Secrecy reigns supreme when it comes to investigating AZ judges

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PHOENIX – The Arizona Commission on Judicial Conduct rejects nearly every complaint it receives: 97.2% of them.

Are all these layoffs justified? The public has no way of knowing.

The commission, which investigates and disciplines judges, operates under special rules that were created for the Arizona court system that exempt it from public records and open meeting laws.

“The judiciary is the only branch that can take your money, take your children, take your house, take away your freedom, put you in jail and even kill you. You would think we would demand transparency from you. ‘such a system,’ said David Cuillier, a nationally recognized public records expert and professor at the University of Arizona.

He added: “It is probably the most powerful branch of government and yet the most secretive.”

The ABC15 investigation into the lack of transparency and public accountability in the commission’s investigations and deliberations under its “(Dis)honorable” investigationwho exhibited an “astonishing and horribleThe judicial misconduct complaint was dismissed.

Maricopa County Superior Court Judge Erin Otis and her staff people who are frequently mocked and ridiculed during court hearings and trials – including death penalty cases – by regularly emailing each other cruel, racial and obscene statements, jokes and memes.

The commission, which denied ABC15’s requests to release the underlying records, sent Otis a private warning letter instead of pursuing the complaint.

The dismissal allowed the judge to keep his name and involvement confidential.

Otis came off the bench in 2020 to accept a position as a death penalty prosecutor at the Maricopa County District Attorney’s Office.

MANY DISMISSALS, LITTLE TRANSPARENCY

The Commission on Judicial Ethics was created in 1970.

It is an independent state agency responsible for investigating complaints against judges and judges at all levels of the state justice system. The committee is currently composed of 11 membersincluding six judges, two lawyers and three members of the public.

The commission operates under the rules of the Arizona Supreme Court, which have a special exclusion from the state’s public records laws.

These rules make confidential the following committee documents: correspondence, drafts, computer records, investigation reports, attorneys’ work product, proceedings, and most records in dismissed cases.

In dismissed cases, such as the complaint against Judge Otis, only the final order and the complaint is published online. But all identifying information about the judge and the court is redacted.

There is no public information about what the commission investigated.

“We’re supposed to believe they’re being honest with us. But we can’t say that,” Cuillier said. “Unless we can see the tapes ourselves, we’ll never know… Maybe they’re acting in good faith. Maybe they are not. We will never know.”

From 2006 to 2020, the commission dismissed 97.2% of complaints, according to an ABC15 calculation of basic statistics published on the commission’s website.

In raw numbers, 150 complaints were upheld and 5,221 complaints were dismissed over the 15-year period.

The members of the Commission refused several interview requests.

Instead, the chairman of the commission, the Hon. Louis Frank Dominguez sent ABC15 a three-page written report. [A copy is embedded at the end of this report.]

“The majority of complaints filed with the Commission result in dismissals, however, a substantial percentage of the cases received and dealt with each year by the Commission are, at root, disagreements with judicial decisions, such as allegations that the judge made a legal decision. wrong decision,” Dominguez wrote. “The Commission has no jurisdiction to overrule, vary or revoke the decisions of a judicial officer.”

Dominguez also wrote that the Arizona commission is one of the most transparent in the country.

WHAT DID THEY INVESTIGATE?

The commission’s rules and guidelines state that members have the discretion to release more information and documents if it is in the interest of justice or the public.

In January, ABC15 sent a written request for more disclosure in Otis’ complaint. But Board members issued a formal order denying the request two weeks later.

“After careful consideration, the Board has concluded that the application has failed to establish a good cause that such additional discretionary disclosure is in the interests of justice,” according to the order.

Otis has presided over major felony cases, including several death penalty trials.

Without the underlying investigative records, it’s unclear what evidence and testimony the commission considered in Otis’ complaint.

In the anonymized final dismissal order, the commission wrote: “The Commission’s investigation found no clear and convincing evidence that the judge started memes, however, she was copied on numerous e -emails and sometimes commented on the content”.

He continued: “The Commission has decided, after considering all the facts and circumstances, to dismiss the complaint in accordance with Commission Rules 16(b) and 23(a), but to issue a warning letter to the “Judicial officer for her to ever return to in the future, she must appropriately supervise her judicial personnel, including an employee’s use of electronic communications.”

The courtroom clerk whose information initiated the complaint against Otis was shocked by the end result.

“I don’t understand,” Kelly Shafer told ABC15 during an interview earlier this year. “I don’t know how they feel that she didn’t participate…There were so many times she would say to her usher, ‘This needs a meme, this needs a meme .'”

ABC15 reviewed evidence that shows Otis started a cruel and insensitive chain email to mock a defense attorney for cellulitis on his butt.

The station also pulled video from the courtroom to match recordings to specific times when various emails, memes and jokes were sent.

The footage shows Otis smiling and laughing at his computer.

In some cases, during breaks, she also called other courtroom staff to look at her computer screen.

“I think what was frustrating for me: it all went to the ethics committee, the judicial ethics committee. They told me that for a year and a half, they were going to make a statement because she was young, that they never wanted her to be a judge again. They didn’t,” said Shafer, who added that she was questioned by the commission twice. “I think they failed in their duty.”

Jokes and memes sent between Otis and his staff have ridiculed and mocked attorneys, witnesses, jurors, defendants and their families.

It is unclear whether the commission ever spoke to those who were disparaged.

ABC15 identified and spoke to several victims, who said they were never notified and were shocked to learn what happened from a news station and not the commission.

The commission also failed to speak to certain witnesses who were central to the serious allegations made in the complaint against Otis.

One of the main allegations concerned ex parte communications with detained defendants.

But the detention officer assigned to Otis’ courtroom told ABC15 he was never interviewed by the commission.

ROLL-OUT DECISIONS

While Otis’ 2019 complaint was dismissed and his name was not made public, ABC15 looked at other cases where judges were publicly identified and disciplined for their conduct.

One example: a 2018 complaint against Justice of the Peace Steve Urie.

The commission issued a public reprimand to Urie for a Facebook post that generically described a previous landlord/tenant dispute hearing in his courtroom.

“The posting and response made fun of the tenant’s level of intelligence. This is an appearance of impropriety and diminishes public confidence in the justice system,” according to the commission’s final order in the case.

A Facebook post after a hearing earned Urie a sustained complaint and public discipline. But more than a year of obscene, racial and cruel emails, memes and jokes sent during hearings and lawsuits between Otis and his staff have been dismissed.

In the written response to ABC15, the committee chair did not specifically address the disparity between the final decisions in the two cases.

“The Commission assesses each complaint individually, although the Commission may review similar cases for parity purposes,” Dominguez wrote. “The Commission shall also consider the aggravating and mitigating factors set out in Commission Rule 19.”

A copy of the commission’s full response to ABC15 is below.

Contact ABC15 Chief Investigator Dave Biscobing at [email protected]

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