Cochise County judge publicly reprimanded - not very publicly
- Oct 10, 2016
- 5 min read
elected or appointed, Arizona judges subject to rules, review proceedings and punishments
complaint by attorney under contract to Cochise County led to a review and reprimand
PHOENIX - Last year, Judge Charles A. Irwin of the Cochise County Superior Court was publicly reprimanded by the Arizona Commission on Judicial Conduct. But the public was not notified of the action taken against the longtime judge because the Commission does not issue press releases in decisions involving reprimand.
Irwin was found to have violated four rules of the Arizona Judicial Code of Conduct as the result of a December 2014 complaint filed by Emily Danies, an attorney who handles criminal appeal cases under contract for Cochise County. The Commission’s order of reprimand noted Irwin “engaged in improper ex parte communications and improperly inserted himself into the appellate process” of one of the cases over which he presided.
The complaint against Irwin was just one of 412 filed in 2014 [see results, below] with the Commission, an independent state agency that investigates complaints of judicial misconduct. Its authority to impose disciplinary sanctions extends to the supreme court, appeals courts, superior courts, justice and municipal courts, superior court commissioners,
hearing officers, and referees.
According to the Commission’s website, the purpose of sanctions is to “restore and maintain the dignity and honor of the position and to protect the public by assuring that the judge will refrain from similar acts of misconduct in the future.”
Complaints are made by citizens, attorneys and court personnel, and can address a judge’s conduct on the bench as well as off the bench actions. The Commission, which has subpoena power, can resolve a complaint by dismissal, dismissal with comment, or by an informal sanction of public reprimand.
The Commission can also recommend the Arizona Supreme Court issue formal sanctions of censure, suspension, or removal from the bench.
AN ERROR IN THE RECORD - AN UPSET JUDGE CALLS THE ATTORNEY GENERAL
The decision to reprimand Irwin traces back to a 2007 criminal case against Daniel Diaz, who Danies was representing on appeal to the Arizona Supreme Court. The Court was reviewing one of Irwin’s decisions in the case.
On November 6, 2014 the Court held oral arguments during which one of the justices incorrectly referred to a former Diaz attorney as “court appointed” when in fact he was a private attorney who worked the case pro bono (without fee). Neither Danies nor the Arizona Attorney General’s Office lawyers corrected the justice’s comment so the misinformation became part of the record.
Commission records show Judge Irwin listened to a recording of the oral arguments and noted the incorrect comment about Diaz’s former attorney. Irwin also secured an old email showing Danies knew the attorney was not court appointed. Then he contacted the Attorney General’s Office. The Supreme Court went on to vacate Irwin’s decision and remanded the matter back to Superior Court for further proceedings.
Documents show Jonathan Bass, an assistant attorney general involved in the Diaz case, told Irwin he saw no need to correct the Supreme Court about the former attorney because it was immaterial to the matter the justices were considering. After being rebuffed by Bass, Irwin asked a supervisor to review the situation, but that supervisor, Jonathan Parkhurst, also determined the information was not essential to the appeal and declined to contact the Court.
Records show Irwin never informed Danies of his concern, but instead communicated at least four times with the AG’s office, which violated Rule 2.9 of the Code which states “a judge shall not initiate, permit, or consider ex parte communications…”
APPELLATE ATTORNEY CITED INTIMIDATION, FEARED RETALIATION
After Danies learned of Irwin’s ex-parte contact with the AG’s office the parties agreed to file a joint notice to the Supreme Court pointing out the discrepancy regarding Diaz’s former attorney. Danies said she did so partly due to “a sense of intimidation” caused by Irwin's communications with the AG's office.
In her detailed complaint to the Commission, Danies alleged Irwin’s comments “culminated in a false accusation that Ms. Danies intentionally misled the Arizona Supreme Court.” She said the judge “exploited his position to improperly insert himself into the appellate process and intimidate the appellate attorneys.” The complaint also noted Danies’ concern of retaliation against her client Diaz, as Irwin was still the trial judge of record.
Irwin’s response to the complaint was received January 16, 2015. He explained that prior to contacting the AG’s office he “spoke with my Presiding Judge, Judge Conlogue, our former Presiding Judge, Judge Hoggatt, and another Superior Court Judge seeking advice.” He was told not to contact the Supreme Court directly so he called the AG’s office simply to “request that the Court be notified of this factual error.”
His issue was not specifically with Danies, noted Irwin, as he believed attorneys for both parties should “have made it clear to the Court that it was operating under a misunderstanding of fact” concerning whether the former attorney was court-appointed. “Anything less in my view was a breach of their obligation of candor toward the Court,” he added.
Irwin acknowledged the AG’s office was a party to the Diaz appeal but he did not consider his communications to be ex parte in nature. He noted that AG staff “also serves the Court as its attorney when needed” and that over the years he had called Bass for advice “on procedural matters.” However, he conceded “in hindsight, I do agree it would have been good to send the e-mail to both the Attorney General and Ms. Danies.”
The Commission determined Judge Irwin’s actions violated rules 1.2, 1.3, 2.2, and 2.9 of the Arizona Code of Judicial Conduct. The Commission’s March 26, 2015 Order called for Irwin to be reprimanded, which is an informal, public sanction.
JUDGE ADMITS VIOLATIONS, ARGUES AGAINST PUBLIC REPRIMAND
On April 8, 2015 Irwin requested the Commission reconsider the reprimand decision, asking that the case be resolved as “dismissed with comments” which is a non-public resolution. The names of judges in cases resolved in that manner are not available to the public. Irwin recognized his “zealous concern regarding the misstatement of fact lead to my inappropriate behavior” but argued a decision of reprimand was not necessary to ensure he “will refrain from similar acts in the future.”
Commission attorney April Elliott noted that Irwin “does not contest the finding of a violation, but only the severity of the sanction” to be imposed. She argued that “the egregiousness of the conduct” supported upholding the reprimand. The Commission declined Irwin’s request and on May 7, 2015 the case was posted to the Commission’s website as a public reprimand. That was the only action the Commission took to inform the public of the decision.
This is the second known complaint against Irwin since he was appointed a Superior Court judge in 1996. He was censured in 2000 for making inappropriate comments to a court employee and for having alcoholic beverages in his chambers. Censure is a formal public sanction in which it is determined a judge committed misconduct, but not at a level requiring suspension. Irwin was also required to attend sensitivity training.
Charles A Irwin's first terms as Superior Court judge were 1996-2004 in Division 4. He then lost re-election to Ann Littrell. In 2007, Judge Irwin was again elected to judicial office, in Division 2. He was re-elected in 2014 after running unopposed in the Republican primary and general election. His current term expires January 6, 2019.
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The results of complaints about judges, filed in 2014 with the Commission: 1 removal, 1 suspension, 2 censure, 7 reprimands, 17 dismissed with comment, 384 dismissed.
Contact reporter Terri Jo Neff at 520-508-3660 and cjw_media@yahoo.com
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