Bar Dismisses Judge’S Complaint About Prosecutor

Testimony lays bare conflicts, fears that made a judge retire

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Chief Deputy Attorney Shawn Fuller

A state disciplinary panel Wednesday quickly exonerated Gila County’s chief deputy attorney of charges without even asking him to mount a defense to claims that he acted unprofessionally when he stormed out of a courtroom last year.

Still, hours of testimony in Arizona’s Supreme Courthouse revealed a bitter division between the prosecutor’s office and several Superior Court judges. The hearing featured startling testimony from court staff, including one judge who said he feared being set up for criminal charges.

The three-member panel heard hours of testimony against Fuller, retired briefly, then came out to say an Arizona Bar Association prosecutor hadn’t proved his case. Fuller's lawyer then elected not to present a defense.

Judge Robert Duber’s complaint triggered the disciplinary hearing and on Wednesday he gave the most telling testimony. The former prosecutor and longtime Globe judge said he decided not to run for re-election because things have gotten so bad between him and the GCAO “that anything that might be used to prosecute a judge could be.”

Fuller’s aggressive attitude rubbed Duber wrong.

In April 2013, Duber filed a charge against Fuller with the state Bar claiming the prosecutor treated both a defense attorney unprofessionally, as well as both Superior Court Judge Peter Cahill and himself.

Fuller rebuffed the accusations and on Thursday County Attorney Bradley Beauchamp applauded the disciplinary panel for dismissing the case with prejudice, which means the panel won’t again consider those charges. Beauchamp thanked the panel for its “prompt and just dismissal.”

The disciplinary panel’s decision came after state Bar counsel Hunter Perlmeter called on five witnesses, including Duber and Cahill and then quickly dismissed the charges.

“We don’t condone unprofessional conduct by any counsel in any case. We purely rule on evidence, however, in these matters,” said Judge William O’Neill, presiding disciplinary judge. “The undisputed evidence that has been submitted does not rise to a level of sanctionable conduct under our ethical rules.”

The allegations

The charges brought against Fuller primarily occurred during a three-day period in April last year, just a few months after Fuller became chief deputy, leaving his position in the Maricopa County Attorney’s Office.

Beauchamp offered Fuller the position after he won a fiercely contested election against then-county attorney Daisy Flores. Beauchamp ran on a tough-on-crime platform and criticism of Flores’ plea deals, explained Fuller’s lawyer, Edward Novak during opening statements. You can listen to Novak and Perlmeter’s complete opening remarks online at payson.com.

Fuller realized early on, however, that at least Duber was not going to be “friendly towards him,” Novak said.

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Gila County Superior Court Judge Robert Duber

A few months before Duber filed his complaint with the Bar, the judge repeatedly expressed frustration that Fuller was not present at status conferences on the Gabriel Jaramillo case. The murder suspect had fled from police, got into a shoot-out with deputies and then hid for days near Roosevelt Lake before his capture.

Because Fuller was working in Payson, he had sent attorney June Ava Florescue in his place to Globe. This happened again on Feb. 19 when Gila County attorney Bryan Chambers appeared for Fuller. Both times Duber said he wanted Fuller present since he was the lead attorney and believed only he could make a plea in the case. Novak pointed out this was not the case and even Chambers told Duber he had authority.

Duber disputed that.

“I had been advised by county attorney staff that only Mr. Fuller or the county attorney could approve plea agreements. Second, it was abundantly clear from Mr. Chambers’ comments and his tone that he had simply called at the last minute to appear. Third, I had postponed the hearing when Mrs. Florescue was there to ensure Mr. Fuller was there.”

April 3: Comments to an attorney

With Duber already frustrated with Fuller, on April 3, he and defense counsel Anna Ortiz appeared before Duber for pre-trial work on the Jaramillo case. While Ortiz was discussing an oral motion she had made, Fuller interrupted saying she had not actually made the motion. He reportedly leaned in toward Ortiz in a “purposeful posture of dominance,” according to Duber’s complaint.

Duber explained that Fuller seemed angry enough to say, “you are wrong and I am right.”

“Had you seen this before in a courtroom?” Novak asked Duber.

“I have,” Duber said.

Novak asked Duber if it is common for emotions to run high during criminal cases.

He said that often happens. Still, Duber felt Fuller was out of line.

Perlmeter argued Fuller engaged in unprofessional conduct toward the court and opposing counsel.

April 4: “That’s a blatant lie.”

On the first day of the Jaramillo trial, a sheriff’s deputy Fuller questioned on the stand had had a hard time remembering his interview with the department’s internal affairs investigator.

Duber took a recess so the deputy could review the interview. As the jury filed out of the room, Ortiz claimed Fuller leaned toward her and commented he would go ahead and put into evidence the entire transcript.

Ortiz replied she would not like that and Fuller reportedly replied, “I bet you wouldn’t.”

Ortiz said she believed one juror turned around as though she had heard the comment.

A short time later, Ortiz reported her version of the conversation to Duber.

As she explained what happened, Fuller cried out, “That’s a blatant lie.”

Duber objected to the outburst.

“Mr. Fuller you have a style that is fairly aggressive that when you suggest that a lawyer has made a blatant lie you subject yourself to some interesting questions. For example, I am going ask my staff if they observed it. Maybe they did, maybe they didn’t. If they did, my intention is to suggest to you that you either owe Mrs. Ortiz an apology or I will need to take some action.”

Duber went on to say, “I have almost never heard a lawyer make such an accusation as quickly and as vehemently as you have.”

A court reporter said she didn’t see any jurors turn around. She also didn’t hear anything. A court clerk, however, said she heard Fuller make the comment.

Duber did not question any of the jurors.

A recording of the hearing did not pick up any comment by Fuller. Duber admitted that microphones recording any remarks were closer to Fuller than the jurors.

Still, Perlmeter argued Fuller had again been disrespectful.

April 5: “You can’t do that!”

On April 5, during a break in the Jaramillo case, Fuller and Ortiz went to Cahill’s courtroom to handle another criminal case.

There, Cahill discussed appointing a third expert to determine whether the defendant was insane at the time of the crime and now competent enough to stand trial. Cahill asked Ortiz if he should appoint the defense’s expert as the court’s expert.

“That would be fine,” Ortiz replied.

“OK,” Cahill said.

Fuller blurted out “You can’t do that,” clearly upset the court would suggest using the same expert as the defense.

Cahill reprimanded Fuller for being rude and said he needed to get some manners, but Fuller stormed out of the courtroom. After Cahill shouted for Fuller to come back, the prosecutor reappeared in the courtroom and said “It’s Mr. Fuller judge.”

Two inmates in custody witnessed the confrontation and watched as Fuller ignored Cahill for the rest of the hearing, Perlmeter said.

“That day the inmates behaved better than the prosecutor,” Perlmeter said.

During cross-examination, Novak asked Cahill if he should have told Fuller that he needed to learn “polite, basic kindergarten manners.”

“Would you have phrased that differently if that were to happen today?” Novak asked.

“No,” Cahill said.

“Nothing rude about that?” Novak said.

“No, it is certainly true. Lawyers are not allowed, as you told me, to stomp out of the courtroom.”

Court Reporter Glinda Fabok detention officer Anna Cruz and defense attorney Ortiz all testified Wednesday that they had never seen an attorney storm out of a courtroom.

Fabok said she was “shocked.”

“I had never seen that happen in my years of being a court reporter. I have seen antics I say, they get passionate, but I have never seen anybody erupt like that,” she said.

Cruz said it looked like Fuller was throwing a temper tantrum.

Several days after the hearing, Cahill held Fuller in civil contempt.

Fuller eventually apologized to Cahill for his actions and Cahill purged the contempt order.

Both Cahill and Duber said while Fuller had apologized to them, they no longer felt those apologies were sincere.

Cahill said Fuller’s “subsequent conduct, subsequent behavior, subsequent mannerism” have all led him to believe that Fuller only apologized because his lawyer told him to.

“I certainly believe that when he gave it to me that it was sincere and apologetic. I have since come to question all of that,” he said.

The after effects

For some time, Fuller and prosecutor Joy Riddle have filed change of judge notices so that Cahill does not handle their cases. To date, they have filed nearly 100 notices, which the rules allow.

Perlmeter asked Duber if these notices have had an impact on casework.

“Oh, absolutely,” Duber said.

Duber’s calendar is now booked up until August and he frequently worries what would happen if they all went to trial.

Beyond that, court staff has commented that things are “palatably tense, it is palatably unpleasant” in the courtroom.

“Mr. Fuller and frequently Mr. Beauchamp wait outside the courtrooms and when it is a case that they have someone steps out, they come in, do their hearing and then go right back out again and stand in the hallway until it is the next time for them to appear,” he said.

Fabok said things appear strained between the judges and the county attorney’s office.

Cahill, however, said he had worked well with Fuller for the past year.

“I had welcomed Mr. Fuller as an experienced, aggressive prosecutor that our county needed,” he said.

Duber feels differently. While he initially planned to run for re-election later this year, he recently pulled out of the race.

On Wednesday, Duber explained he did so in part because he no longer has faith in the prosecutor’s office.

Prosecutors have become so hostile toward him and the other judges that he believes he could be prosecuted.

Back in the late 1980s, when he ran for re-election, he was dubbed “Duber on Drugs” as a way for some people to criticize him for being too lenient on drug offenders. They circulated the unfounded allegations that he must be involved in drugs or is some kind of “drug kingpin.”

When Duber decided to run again this year, this allegation came up again, he said.

Duber said he now double locks his home because he worries someone may plant something that makes it look like he’s tied to illegal activity.

“I do not believe it is beyond the realm of possibility that this county attorney’s office would file a criminal complaint against me if they could find somebody who would swear that they engaged in a drug transaction with me,” Duber said. “I have no faith whatsoever that they would do an adequate investigation because I believe the circumstances have reached a point that they would bypass their obligations to do an adequate investigation.”

The Roundup sought comment from Fuller for a comment on Duber’s allegation, but the prosecutor had not responded as of press time.

Comments

Pat Randall 8 months, 1 week ago

Now if Cahill would leave the court, Gila county would be a better place to live for the honest folks.

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Susan Imperatrice 8 months ago

I sit in the Superior Court in Globe often. I see prosecutors who are respectfully referencing the law and judicial procedure, facing verbal abuse and worse from both Judge Duber and Judge Cahill. If these judges consider being expected to know and follow the law as disrespect then it appears these judges put their own egos over justice. Has anyone had the chance to listen to the entire State Bar hearing of the complaint Judge Duber filed against Prosecutor Shawn Fuller? Listening to that hearing tells the story. You can listen to that entire hearing at gila1019.com.

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