Citing “bullying, cunning use of rules and political self-interest” by the Gila County Attorney’s Office, Gila County Superior Court Judge Robert Duber has decided not to seek re-election.
“My criminal calendar has become emotionally toxic,” the Globe judge with 28 years on the bench wrote to Presiding Court Judge Peter Cahill. “My family has expressed disappointment that I am being ‘driven out,’ but they support my decision and have expressed relief. My daughter feared for my physical safety or that I might be ‘set up’ in efforts to harm my reputation.”
The decision leaves Payson Town Attorney Tim Wright now running unopposed for the seat.
The decision by one of the county’s two, elected superior court judges to leave by the end of the year brings to a head an increasingly bitter confrontation between the superior court judges and prosecutors working for Gila County Attorney Bradley Beauchamp.
County Attorney Beauchamp could not be reached for comment prior to press time.
A dispute that started with indignant complaints by prosecutors that Judge Cahill rejected some proposed plea bargains has escalated steadily in the past 14 months. The prosecutor’s office has for some months routinely requested a new judge anytime a criminal case is assigned to Cahill — which means Judge Duber in Globe has taken on the majority of the new judge anytime a criminal case is assigned to Cahill – which means Judge Duber in Globe has taken on the majority of the criminal cases. Both prosecution and defense attorneys can ask for a new judge once for any single case without giving a reason.
In the meantime, Chief Deputy Gila County Attorney Shawn Fuller faces charges filed by the State Bar disciplinary counsel before the Supreme Court’s Presiding Disciplinary Judge for a series of incidents in which he either walked out of court in a dispute with Judge Cahill or interrupted defense attorneys. After Fuller apologized, Cahill found that Fuller had purged himself of contempt.
In reaction to Judge Duber’s letter, Judge Cahill commented, “more than 30 years of Judge Duber’s long career has been dedicated to serving the people of Gila County, first as our county attorney and then as judge. Judges routinely retire at 20 years when they’ve earned their full, maximum pension benefits. Judge Duber has continued to serve long thereafter for virtually no financial benefit. He has been especially helpful in my effort to make sure judicial services are properly provided to citizens of Northern Gila County. I am grateful for his long and distinguished service.”
The small, Gila County system has only two elected judges, although pro tem Judge Gary Scales also assists.
In a wide-ranging interview with the Roundup, Duber on Monday elaborated on his decision not to seek re-election. He said Judge Cahill is considering shifting the bulk of the criminal cases until Duber’s term expires to pro-tem Judge Scales and out-of-county judges – if the county attorney’s office continues to refuse to try cases before Cahill.
“Things are already a mess,” said Duber about the upending of the scheduling and growing air of confrontation. “If we didn’t have Judge Scales who can step up and do this we’d be in true crisis. If prosecutors had two notices of change of judge, we would be in a true crisis. We’re not in crisis – but we’re in a mess.”
Judge Duber said that in his 28 years on the bench, he’s never encountered such a toxic, confrontational atmosphere.
“Never. Never. Never. Never. It’s never been close to this,” he said.
He said it reminds him of the confrontation between Maricopa County Attorney Andrew Thomas and both the board of supervisors and several superior court judges. Thomas actually filed felony charges and a racketeering lawsuit against Superior Court Judge Gary Donahoe. Thomas was eventually disbarred for abuse of power and other charges and a court awarded Donahoe $1.2 million for false prosecution.
“I’ve never see anybody do anything like this with a judge,” said Duber of the treatment of Gila County Superior Court judges by Beauchamp. “When they were talking about these sorts of things happening in Maricopa County, we were all just shaking our heads saying, ‘what is the world coming to? We’ve come to the end of the world when you can do this stuff.’ Most of us, when we practiced law, it never occurred to us if a judge said ‘sit down and be quiet,’ we would say ‘no. I’m not through.’ There’s a mechanism when you disagree with a judge. You appeal.”
Duber said it’s like batting against Hall of Fame Pitcher Don Drysdale, who had a record for hitting batters on purpose. “They said, Don Drysdale wouldn’t waste four pitches trying to walk you – he’d just hit you. That’s the sort of attitude that I see now. If you crowd the plate or challenge the pitcher, the idea is to hit the ballplayer without getting called by the ump. These are the days when ballplayers don’t see any problem with chest-bumping the refs or throwing towels in the coaches face.”
The standoff has begun to build a worrisome backlog, said Duber. The county attorney’s office has been filing about 600 cases a year for several years, about 50 cases come into the system every month. With two judges, the system can handle about 100 trials a year. With one judge hearing criminal cases, the system can handle at most 75 cases, said Duber. In fact, last year there were 19 jury trials.
“The judges are ending up in a position where if you can’t plea it and you can’t try it – then dismissal is what you’ve got left.”
The long-time judge and former prosecutor said this county prosecutor’s office has persistently skirted the ethical edge when it comes to key rules – like disclosing evidence.
The rules require prosecutors to disclose evidence and list witnesses as soon as possible to give the defense time to prepare – and bars use of witnesses disclosed less than seven days before the trial except in extraordinary sentences. But the county prosecutors often wait until the last minute to disclose evidence, he said.
In a recent case, “I granted a motion to continue a trial because eight days before trial before there was a disclosure of victim medical records. The state agreed they wouldn’t use the information and the defendant’s lawyer said, ‘but it’s going to help my case. If I hadn’t read the disclosure, they would have pulled a fast one.’ “
Duber noted that in a murder case prosecutors didn’t arrange for the medical examiner to be interviewed by the defendant’s attorney until 12 days before trial.
He said the county attorney’s office has been spending thousands of dollars ordering transcripts trying to build a case against judges who rule against them. He noted one recent case in which the office requested a transcript when he made a joking observation from the bench that the prosecutor’s pleading used the term “flea” instead of “flee” in a filing.
But the roots of the dispute remain sunk in the soil of the plea bargain system, which settles the overwhelming majority of cases.
Prosecutors negotiate plea deals with defendants and their attorneys, often dropping some charges or reducing them to less serious charges in return for a plea deal that avoids a trial. However, judges retain the power to impose sentence – so both prosecutors and defense attorneys must convince judges to accept those pleas. In some cases, judges have balked – especially Judge Cahill.
In one such case, prosecutors immediately presented the same plea deal to Judge Duber.
“I refused to reconsider it,” said Duber. “My legal rationale was that without some explanation as to a material difference in what the judge had decided, I wasn’t going to let them basically appeal Judge Cahill’s decision.”
Prosecutors then filed a “special action” to ask an appeals court to overturn the decision of the two superior court judges. The court of appeals declined to consider the case, which Duber said was the only time the county attorney has actually sought review by a higher court that ne can recall, said Duber.
Duber, who was born in Globe, said after 32 years as a judge, prosecutor and defense attorney, he realized he would make more money by retiring than he would by continuing to show up for work in a toxic climate.
He said he has treasured his time on the bench.“Practicing law – it’s not just a job – it’s a profession. I tell people, if you want me to send someone prison – then let’s be sure they get a fair trail. I’m OK sending people to prison if they’ve had a fair trial. I’m OK recognizing that sometimes I make mistakes and the court of appeals may say you have to change this. Fairness is important.”
He said he’s glad that Judge Cahill will remain after he leaves. “He really have been on either the court of appeals or the supreme court – he just happened to be a Democrat when we had Republican governors appointing people. He could have easily fit into the Supreme Court and have been a stellar performer there. What’s happening is a shame.”